Listen all the way to the end, when Dennis Archer, chairman of the ABA’s Task Force on the Financing of Legal Education, offers his defense of the Task Force’s non-response to the current crisis resulting from a dysfunctional system.

Filed under: "THE LAWYER BUBBLE", Law School, News You Might Have Missed]]>http://thelawyerbubble.com/2015/07/29/nprs-marketplace-report/feed/2thebellyofthebeastABOUT SANDRA BLAND’S DEADLY ENCOUNTERhttp://thelawyerbubble.com/2015/07/28/about-sandra-blands-deadly-encounter/
http://thelawyerbubble.com/2015/07/28/about-sandra-blands-deadly-encounter/#commentsTue, 28 Jul 2015 16:54:18 +0000http://thelawyerbubble.com/?p=12378Continue reading →]]>“She had been pulled over for failing to signal a lane change.” — The New York Times, July 16, 2015

That’s the most important line in the Sandra Bland story. And it has become lost in the controversy over whether her July 13 death in a Waller County Texas jail cell was suicide. Attention now focuses on her mental state and the marks on her body. But everyone should be taking a closer look at officer Brian T. Encinia and why he stopped Bland in the first place.

Bland, a suburban Chicago native, graduated from Prairie View A&M in 2008 and returned to Chicago. On July 10, she accepted a job working with students at her alma mater. Youthful optimism notwithstanding, Bland must have known that she was re-entering hostile territory.

Encinia is 30 years old and has been a Texas state trooper for 19 months. According to a now-deleted Linked-In profile, he took a circuitous route to law enforcement. In 2008, he graduated from Texas A&M University with a degree in agricultural leadership and development. Then he joined Blue Bell Creameries where he left his position as an ingredient processing supervisor in 2014. (Blue Bell is now infamous for the nationwide listeria-related recall of its ice cream.) He also worked at the Brenham (TX) Fire Department.

Disturbing Details

A detailed examination of the complete 47-minute dash-cam video from Encinia’s squad car tells far more than the short excerpts airing on television. For starters, Bland’s car had Illinois license plates. To a white local cop in many places throughout America, she was a black out-of-towner worthy of presumptive suspicion.

Also noteworthy is the principal feature of the four-lane road on which Bland drove: it’s desolate. What constructive police work could possibly occupy Encinia’s time there? During the first 15 minutes of the video, only 36 vehicles passed in her direction. Two of them made illegal u-turns — without signaling — and continued on their way.

Through the Looking Glass

After Encinia pulled Bland over, he walked to the passenger side of her car and their interaction began:

Encinia: Hello ma’am. We’re the Texas Highway Patrol and the reason for your stop is because you failed to signal the lane change. Do you have your driver’s license and registration with you? What’s wrong? How long have you been in Texas?

Timeout #1

“How long have you been in Texas?” Encinia’s early question supports my “black driver, out-of-state plate, pull-‘er-over” hypothesis.

Back Through the Looking Glass

Bland: Got here just today.

Encinia: OK. Do you have a driver’s license? (Pause) OK, where you headed to now? Give me a few minutes.

Encinia walked back to his squad car. After making Bland wait a full five minutes, he returned to the driver’s side of her car and said, “OK, ma’am. You OK?”

Bland: I’m waiting on you. This is your job. I’m waiting on you. When’re you going to let me go?

Encinia: I don’t know, you seem very irritated.

Bland: I am. I really am. I feel like it’s crap what I’m getting a ticket for. I was getting out of your way. You were speeding up, tailing me, so I move over and you stop me. So yeah, I am a little irritated, but that doesn’t stop you from giving me a ticket, so [inaudible] ticket.

Timeout #2

According to Bland, she was changing lanes to get out of the way of Encinia’s speeding squad car as it approached her car. For that, Encinia pulls her over? Who signals while changing lanes to clear the path for a police car, fire truck or emergency vehicle approaching quickly from behind? Who signals when making a lane change when there are no other cars in sight?

Back Through the Looking Glass

Encinia: Are you done?

Bland: You asked me what was wrong, now I told you.

Encinia: OK.

Bland: So now I’m done, yeah.

Encinia: You mind putting out your cigarette, please? If you don’t mind?

Bland: I’m in my car, why do I have to put out my cigarette?

Encinia: Well you can step on out now.

Timeout #3

It’s lawful to smoke in your own car. In fact, I assume Texans’ zeal for individual liberty makes it especially permissible in that state to smoke in your own car — perhaps while cleaning your gun.

Encinia didn’t answer Bland’s question because he couldn’t. There was no legal basis for his request, unless he thought she might use the cigarette as a weapon against him.

Back Through the Looking Glass

Bland: I don’t have to step out of my car.

Encinia: Step out of the car.

Bland: Why am I …

Encinia: Step out of the car!

Bland: No, you don’t have the right. No, you don’t have the right.

Encinia: Step out of the car.

Bland: You do not have the right. You do not have the right to do this.

Encinia: I do have the right, now step out or I will remove you.

Timeout #4

Encinia became defensive about Bland’s denial of a request for which he had no lawful justification (“Would you mind putting out your cigarette, please? If you don’t mind?”). So he bullied his way into an escalation of the conflict with a new demand (“Step out of the car”). With stunning speed, he lost his temper and started yelling.

The current focus on Bland’s mental history is misplaced; someone should investigate signs of anger, aggressiveness, racism, and generally inappropriate behavior in Encinia’s past. Even more pointedly, it’s worth scrutinizing the process that qualifies someone to become a “peace” officer for the Texas Highway Patrol.

One of my friends specializes in criminal law. Here’s what he tells black clients and friends: if you’re subject to a routine police stop in a white neighborhood, remain in your car so the policeman doesn’t perceive your act of getting out as aggressive. Perhaps Bland had received similar legal advice. Still, once policeman asks you to get out of your car, it’s wise to obey.

Back Through the Looking Glass

Bland: I refuse to talk to you other than to identify myself. [crosstalk] I am getting removed for a failure to signal?

Encinia: Step out or I will remove you. I’m giving you a lawful order. Get out of the car now or I’m going to remove you.

Bland: And I’m calling my lawyer.

Encinia: I’m going to yank you out of here. (Reaches inside the car.)

Bland: OK, you’re going to yank me out of my car? OK, alright.

Encinia (calling in backup): 2547.

Bland: Let’s do this.

Encinia: Yeah, we’re going to. (Grabs for Bland.)

Bland: Don’t touch me!

Encinia: Get out of the car!

Bland: Don’t touch me. Don’t touch me! I’m not under arrest — you don’t have the right to take me out of the car.

Encinia: You are under arrest!

Bland: I’m under arrest? For what? For what? For what?

Timeout #5

Encinia didn’t have an answer to her question. As described below, he and a colleague eventually developed one after the incident was over. But Bland knew her constitutional rights, even though Encinia never explained them to her.

Back Through the Looking Glass

A few minutes later, Bland was on the ground and in handcuffs as their exchange continued:

Encinia: You were getting a warning, until now you’re going to jail.

Bland: I’m getting a — for what? For what?

Encinia: You can come read.

Bland: I’m getting a warning for what? For what!?

Encinia then showed her the ticket.

Encinia: Come read right over here. This right here says ‘a warning.’ You started creating the problems.

Timeout #6

After Encinia extracted Bland forcibly from her car without telling her why, wrestled her to the ground, and placed her in handcuffs, he finally revealed that she was just going to get a warning for her supposed failure to signal a lane change. That’s astonishing. If Bland had lived to file a lawsuit against Encinia, she should have won.

Getting His Story Straight

After the incident was over, Encinia spoke with someone on his radio (presumably a supervisor) as they developed an underlying theory to justify his behavior:

“I tried to de-escalate her. It wasn’t getting anywhere, at all. I mean I tried to put the Taser away. I tried talking to her and calming her down, and that was not working….

“Evading arrest or detention. (Inaudible). Resisting arrest … She was detained. That’s the key and that’s why I am calling and asking because she was detained. That’s when I was walking her over to the car, just to calm her down and just to (say) stop.

“That’s when she started kicking. I don’t know if it would be resist or if it would be assault. I kinda lean toward assault versus resist because I mean technically, she’s under arrest when a traffic stop is initiated, as a lawful stop. You’re not free to go. I didn’t say you’re under arrest, I never said, you know, stop, hands up.

“Correct, that did not occur. There was just the assault part…

“Like I said, with something like this, I just call you immediately, after I get to a safe stopping point.

“No weapons, she’s in handcuffs. You know, I took the lesser of the uhh … I only took enough force as I — seemed necessary. I even de-escalated once we were on the pavement, you know on the sidewalk. So I allowed time, I’m not saying I just threw her to the ground. I allowed time to de-escalate and so forth. It just kept getting. (Laughing) Right, I’m just making that clear.”

Sickening and Sad

All of this suggests obvious questions that no one is asking:

— When did Bland fail to signal the lane change that caused Encinia to pull her over?

— Why did Encinia ask Bland to get out of her car? Because she kept smoking her cigarette after he asked her to stop?

— Shortly before Encinia first told Bland that she was under arrest, he grabbed her. But she hadn’t touched him. What was the charge for which he first said he was arresting her?

— What justified Encinia in forcibly removing Bland from her car? Her refusal to obey his dubious order that she get out on her own after refusing to extinguish her cigarette?

— What made Encinia laugh while he was on the car radio as a fellow officer on the scene told Bland she was under arrest for assault on a public servant — the only charge ever lodged against her?

Let’s hope Encinia is under oath when he provides the answers. The testimony of the person who caused him to laugh over the radio should be interesting, too.

Three days later, Sandra Bland was dead. No one is laughing now.

Filed under: FROM TODAY'S HEADLINES, News You Might Have Missed]]>http://thelawyerbubble.com/2015/07/28/about-sandra-blands-deadly-encounter/feed/3thebellyofthebeastDEAR ABA…http://thelawyerbubble.com/2015/07/23/dear-aba/
http://thelawyerbubble.com/2015/07/23/dear-aba/#commentsThu, 23 Jul 2015 14:16:41 +0000http://thelawyerbubble.com/?p=12294Continue reading →]]>Dear ABA (especially members of the House of Delegates to the upcoming annual meeting in Chicago):

For years, America’s dysfunctional system of financing legal education has produced too many lawyers for too few jobs — and too many law graduates with too much educational debt. A year ago, the ABA created yet another Task Force to consider the problem. The June 17, 2015 Final Report on the Financing of Legal Education embodies the failure of that Task Force’s mission. It now goes to the House of Delegates for approval.

If the Delegates are interested in rehabilitating the ABA’s credibility and restoring public confidence in the profession on an issue of critical importance to the country, they could take this simple step: reject the Task Force Report. That’s right. Rather than giving the typical rubber stamp of approval amid flowery speeches thanking Task Force members for their time and effort in generating a hollow ABA statement summarizing the obvious, the House of Delegates could just say no.

Round One

Some observers had hoped that the ABA’s previous Task Force on the Future of Legal Education might tackle the daunting issues responsible for our dysfunctional legal education market. After all, the ABA’s leaders promised that the 2012 Task Force would make “recommendations to the American Bar Association on how law schools, the ABA, and other groups and organizations can take concrete steps to address issues concerning the economics of legal education and its delivery.”

To its credit, the 2012 Task Force put its toe in those waters, observing that the “system of lending distances law schools from market considerations and it supports pricing practices that do not well serve either the public or private value in legal education.”

Let’s state the problem more bluntly: Marginal law schools are relying on exploding student debt to produce revenue streams that keep them alive. They get away with it because federal student loans come without school-specific accountability for graduates’ dismal employment outcomes. Schools have no financial skin in the game.

But the 2012 Task Force didn’t go beyond identifying the problem because, it said, “The time and resources available to the Task Force have made it impractical to develop a structure of equitable and effective solutions.”

Round Two

So in May 2014, then-ABA president James R. Silkenat announced the creation of a new Task Force — one specifically devoted to the Financing of Legal Education. It was supposed to pick up where the 2012 Task Force had stalled. It was going to “conduct a comprehensive study of the complex economic and political issues involved and produce sound recommendations to inform policymakers throughout the legal community.”

The 2014-2015 Task Force Report recites that 25 percent of law schools obtain at least 88 percent of their total revenues from tuition and that the average for all law school is 69 percent. It also reports that higher tuition has produced more student debt, even as job prospects for graduates of marginal schools have languished.

Since 2006 alone, average student debt has increased by 25 percent (private schools) and 34 percent (public schools) in inflation-adjusted dollars. Average student debt at graduation from private law schools in 2013 was $127,000; for public schools it was $88,000. Meanwhile, only about half of new law graduates are obtaining full-time long-term jobs requiring a JD.

But the new Task Force didn’t pursue this obvious market dysfunction. Instead, its Final Report offers superficial fixes: better debt counseling for students, better disclosure forms from the Department of Education, more dissemination of how schools spend their money, and continued experimentation with law curriculum. They ignore the core financial accountability problem, rather than confronting and addressing it.

Insularity and Self-Interest

The chairman of the 2014-2015 Task Force was Dennis W. Archer, former mayor of Detroit, former Michigan Supreme Court justice, and past president of the ABA. Did the ABA think no one would notice that Archer also chairs of the national policy board of Infilaw — a private equity-owned consortium of three for-profit law schools — Arizona Summit, Charlotte, and Florida Coastal.

Archer wasn’t the only problematic appointment to the 2014-2015 Task Force. Another member, Christopher Chapman, is president and CEO of Access Group — the collective voice of 197 ABA-accredited law schools.

According to the Access Group’s website, “During the course of our 30+ year existence, we became a leading provider of affordable student loans for aspiring professionals in law, medicine, dentistry, health, business, and other disciplines. As such, we served as a national originator, holder and servicer of federally guaranteed and private, credit-based loans, funding more than $18 billion of education loans since 2001.”

Enough said.

Forfeiting The Right To Be Heard

The fact that, as one 2014-2015 Task Force witness said, legal education may be the “canary in the coal mine” on issues relating to student debt and financing higher education generally is no excuse for the profession to refrain from offering potential solutions.

For that reason, at its upcoming August 3-4 meeting in Chicago, the ABA House of Delegates could reject the Task Force Report. It could then reconstitute the Task Force membership with individuals willing to deliver the tough message that the profession needs. It could direct the newly constituted group to develop meaningful proposals that tie law student loan availability to individual law school outcomes. My recent article in the American Bankruptcy Institute Law Review, “Bankruptcy and Bad Behavior,” offers one idea that would force law schools to put some financial skin in the game; others have suggested plans warranting serious consideration.

The ABA describes its mission as “committed to doing what only a national association of attorneys can do: serving our members, improving the legal profession, eliminating bias and enhancing diversity, and advancing the rule of law throughout the United States and around the world.”

In a single vote rejecting the 2014-2015 Task Force Report on the Financing of Legal Education, the House of Delegates could match those lofty words with action.

On this vitally important issue, the ABA leadership has caused many attorneys and the general public to become cynical about the organization’s motives. The House of Delegates has a unique opportunity to prove that the ABA is not just the vehicle whereby an insular, self-interested group seeks to preserve the present at the expense of the future. The House of Delegates can be part of the solution, or it can remain part of the problem.

For a bunch of smart people, some senior partners did some dumb things. One of the prosecution’s first witnesses was a former member of Dewey’s executive committee who retired at the end of 2010. She had contributed more than $600,000 in capital to the firm and, upon retirement, expected to get it back. Although the partnership agreement permitted the firm to spread the payments to her over three annual installments, she testified that chairman Steve Davis had discretion to accelerate them.

Davis declined her request to do so. Instead, he encouraged her to get a bank loan from Barclays for the full amount and told her that over the subsequent three years the firm would repay the loan for her. She followed his recommendation and borrowed the money.

The firm failed to repay the Barclays loan. She remained on the hook and paid the full amount herself. Adding insult to injury, she lost again when the firm filed for bankruptcy and her $175,000 annual pension disappeared.

#2: Funny, If You Were Not a Fellow Partner

For a bunch of high-powered former Dewey partners who rose to the very top of the firm, titles typically associated with power didn’t mean leadership. Likewise, becoming a member of the firm’s governing structure apparently didn’t result in any duties or responsibilities that involved actual knowledge of the firm’s finances or operations.

For example, during the fifth week of trial, Ralph Ferrara testified that even though he had no equity stake in the firm, he held an impressive title — vice chairman — and had an agreement whereby the firm paid him a salary around $5 million a year. He told the jury that former chairman Steven Davis’ announcement that Ferrara would assume the vice-chairmanship became an offer that he couldn’t refuse.

“I’m embarrassed to say, my ego overcame my good judgment,” Ferrara, a former general counsel of the U.S. Securities and Exchange Commission, said on the witness stand.

That line could describe leaders of big law firms everywhere. But it’s a flimsy excuse for abdicating responsibilities that come with power. So is another of Ferrara’s quoted lines: “I’m a practicing lawyer. I’m not a law firm administrator.”

Dewey’s other vice-chairman was Mort Pierce. As the firm was failing and Pierce was jumping ship in 2012, he similarly disclaimed any leadership responsibilities associated with his title and position.

#3: Funny, For a Lawyer

For a bunch of lawyers who make a lot of money advising clients not to write stupid stuff, some of them sure wrote stupid stuff. As the trial plodded through its fifth week, the jury saw these colorful messages from former Dewey partner Alexander Dye:

“Fellas: Time to start spending Momma LeBoeuf’s money like its water.”

“Steve DiCarmine, if you are reading this, I’ll have your f-cking head on a stick.”

A defense attorney for Dewey’s former chief financial officer Joel Sanders had Shutran explain that these were all jokes. Apparently, the strategy is to convince the jury that Shutran’s email jests were part of a culture producing defendants’ supposed email “jokes” about finding “a clueless auditor” and using “fake income” in crafting the firm’s financial statements. Good luck with that one.

#4: Funny, If You’re Not A Juror

At the end of week six, jurors listened as the presiding trial judge, Manhattan Supreme Court Justice Robert Stoltz, interrupted Stephen DiCarmine’s defense counsel in mid-question. He wanted counsel to explain a term he was using in cross-examining Dewey’s former budget and planning director:

Filed under: "THE LAWYER BUBBLE", Biglaw trends?]]>http://thelawyerbubble.com/2015/07/02/my-bloomberg-interview/feed/0thebellyofthebeastMY LATEST INTERVIEWhttp://thelawyerbubble.com/2015/06/25/my-latest-interview/
http://thelawyerbubble.com/2015/06/25/my-latest-interview/#commentsThu, 25 Jun 2015 21:50:44 +0000http://thelawyerbubble.com/?p=12285]]>On June 25, Robert Hilson of Logikcull asked me to discuss issues that are the subject of my writing. You can listen to the entire interview here: http://logikcull.com/blog/cullcast-3-in-the-belly-of-the-beast-with-steven-j-harper/Filed under: "THE LAWYER BUBBLE"]]>http://thelawyerbubble.com/2015/06/25/my-latest-interview/feed/0thebellyofthebeastWHEN SUPPORTING A CAUSE UNDERMINES IThttp://thelawyerbubble.com/2015/06/10/when-supporting-a-cause-undermines-it/
http://thelawyerbubble.com/2015/06/10/when-supporting-a-cause-undermines-it/#commentsWed, 10 Jun 2015 15:36:40 +0000http://thelawyerbubble.com/?p=12220Continue reading →]]>Lee Siegel and The New York Times probably thought they were aiding a vital cause when the Times published Siegel’s June 6 op-ed, “Why I Defaulted on My Student Loans.” The underlying issue is important. Many of today’s young people bear the burden of huge educational debt in an economy that has not afforded the kinds of opportunities available to their baby-boomer parents, including Siegel.

Here’s the problem: Siegel did more harm than good. He made himself a poster child for the kind of moral hazard that first led policymakers to render student loans non-dischargeable in bankruptcy more than 40 years ago. It was a mistake then, and it’s a mistake now. But Siegel is exactly the wrong spokesperson for the issue.

Lee Siegel’s Pitch

According to his op-ed, Siegel financed his education with student loans, the first of which he obtained 40 years ago. But when his family’s financial hardship left him unable to pay the full cost of tuition at “a private liberal arts college,” he “transferred to a state college in New Jersey, closer to home.” Eventually, he defaulted on his student loans.

“Years later,” he writes, “I found myself confronted with a choice that too many people have had to and will have to face. I could give up what had become my vocation (in my case, being a writer) and take a job that I didn’t want in order to repay the huge debt I had accumulated in college and graduate school. Or I could take what I had been led to believe was both the morally and legally reprehensible step of defaulting on my student loans, which was the only way I could survive without wasting my life in a job that had nothing to do with my particular usefulness to society.”

He urges others to follow his example: default.

Who is Lee Siegel?

Here’s what Siegel and the Times didn’t reveal.

Notwithstanding his transfer to a New Jersey state college, he obtained three degrees from Columbia University — a B.A., an M.A., and a master’s of philosophy. According to the HarperCollins Speakers Bureau website, he’s “an acclaimed social and cultural critic.” The mere fact that he appears on that site means that you should expect to pay big bucks for the privilege of hearing him speak. He has written four books and his essays have appeared in The Atlantic Monthly, The New Yorker, Time, Newsweek, The New York Times, and The Wall Street Journal.

In other words, he has an elite education that led to a lucrative career. He is exactly the wrong person to be the face of the student loan crisis — which is very real.

The Problem with Siegel’s Support

Siegel has now made himself a powerful anecdote for those on the wrong side of the fight for reform in financing higher education. Forty years ago, similar ammunition — anecdotes about individuals exploiting moral hazard — led to bad policy when student debt first became non-dischargeable in bankruptcy.

In the early years of the student loan program, the Department of Health, Education & Welfare brought a supposed “loophole” to the attention of the 1973 Congressional Commission on Bankruptcy Laws. Concerned about tarnishing the image of the new program, the Department didn’t want new college graduates embarking on lucrative careers to default on loans that had made their education possible

But there was no hard, numerical evidence suggesting a serious problem. Rather, media hype over a few news reports of “deadbeat” student debtors took on a life of their own. In 1976, Congress yielded to public hysteria and made student loans non-dischargeable in bankruptcy unless a borrower had been in default for at least five years or could prove “undue hardship.”

In 1990, it extended the default period to seven years. In 1997, the Bankruptcy Reform Commission still had found no evidence supporting claims of systemic abuse, but Congress decided nevertheless that only “undue hardship” would make educational debt dischargeable. That placed it in the same category as child support, alimony, court restitution orders, criminal fines, and certain taxes. In 2005, it extended non-dischargeability to private loans as well.

The Enduring Power of a Big Lie

Unfortunately, the anecdotes and unsubstantiated lore about supposed abuses that led to the current rule persist to this day. In a lead editorial on July 25, 2012, TheWall Street Journal perpetuated the falsehood that “[a]fter a surge in former students declaring bankruptcy to avoid repaying their loans, Congress acted to protect lenders beginning in 1977.”

There was no such surge. It was “more myth and media hype” than reality. Now, Siegel has provided fuel for a new round of obfuscation to displace facts.

“Thirty years after getting my last [student loan],” Siegel writes, “the Department of Education is still pursuing the unpaid balance.” I hope they catch him.

“Not all the evidence that you hear and see will be riveting,” said Steve Pilnyak last Tuesday as he opened the prosecution’s case against three former leaders of the now-defunct Dewey & LeBoeuf. The judge warned jurors that they will probably be there past Labor Day. The antagonists will present dueling views of what theNew York Times called “arcane accounting treatments and year-end adjustments” three years before Dewey’s collapse. As you read between the yawns, watch to see if the trial leaves the most important questions about the final days of a storied firm unanswered.

Victims?

The prosecution’s case requires victims. It settled on insurance companies who bought the firm’s bonds in 2010 and big banks that lent the firm money for years. We’ll see how that plays, but it’s difficult to imagine aggrieved parties that would generate less juror sympathy than insurers and Wall Street bankers. Then again, rich lawyers aren’t exactly the most desirable defendants, either.

The prosecution’s cooperating witnesses will take the stand to explain what it calls a “Master Plan” of accounting adjustments that are the centerpiece of the case. The battle of experts over those adjustments is more likely to induce sleep than courtroom fireworks.

Villains?

If you think former firm chairman Steven Davis and his two co-defendants, Stephen DiCarmine and Joel Sanders, are the only villains in this saga, you’re allowing the trees to obscure a view of the forest. In that respect, the trial will fail at its most fundamental level if it doesn’t address a central question in the search for justice among Dewey’s ruins: Who actually received — and kept — the hundreds of millions of dollars that entered the firm’s coffers as a result of the allegedly fraudulent bond offering and bank loans?

As the firm collapsed in early 2012, it drew down tens of millions of dollars from bank credit lines while simultaneously distributing millions to Dewey partners. As I’ve reported previously, during the five months from January to May 2012 alone, a mere 25 Dewey partners received a combined $21 million. Are they all defendants in the Manhattan District Attorney’s criminal case? Nope. Will we learn the identity of those 25 partners, as well was the others who received all of that borrowed money? I hope so.

With respect to the proceeds from Dewey’s $150 million bond offering, the picture is murkier, thanks to protective cover from the bankruptcy court. When Judge Martin Glenn approved a Partner Contribution Plan, he capped each participating partner’s potential financial obligation to Dewey’s creditors at a level so low that unsecured creditors had a likely a recovery of only 15 cents for every dollar the firm owed them. That was a pretty good deal for Dewey’s partners.

But here’s the more important point. As it approved that deal, the court did not require the firm to reveal who among Dewey’s partners received the $150 million bond money. In calculating each partner’s required contribution to the PCP, only distributions after January 1, 2011 counted. The PCP excluded consideration of any amounts that partners received in 2010, including the bond money. That meant they could keep all of it.

In light of the bankruptcy code‘s two-year “look back” period, that seemed to be a peculiar outcome. Under the “look back” rule, a debtor’s asset transfers to others within two years of its bankruptcy filing are subject to special scrutiny that is supposed to protect against fraudulent transfers.

Dewey filed for bankruptcy on May 28, 2012. The “look back” period would have extended all the way to May 28, 2010 — thereby including distributions of the bond proceeds to partners. Which partners received that money and how much did they get? We don’t know.

Connecting Dots

As the firm’s death spiral became apparent, a four-man office of the chairman — one of whom was Bienenstock — took the leadership reins from Steven Davis in March 2012. A month later, it fired him. In an October 12, 2012 Wall Street Journal interview, Bienenstock described himself as part of a team that, even before the firm filed for bankruptcy, came up with the idea that became the PCP. He called it an “insurance policy” for partners.

Taking Bienenstock’s “money is fungible” and “insurance policy” comments together leads to an intriguing hypothetical. Suppose that a major management objective during the firm’s final months was to protect distributions that top partners had received from the 2010 bond offering. Suppose further that in early 2012 some of those partners also received distributions that the firm’s bank loans made possible. Finally, suppose that those partners used their bank loan-funded distributions to make their contributions to the PCP — the “insurance policy” that absolved them of Dewey’s obligations to creditors.

When the complete story of Dewey gets told, the end game could be its climax. It could reveal that a relatively few partners at the top of the firm won; far more partners, associates, staff, and creditors lost.

Or maybe I’m wrong and the only villains in this sad saga are the three defendants currently on trial. But I don’t think so.

Filed under: Dewey, FROM TODAY'S HEADLINES]]>http://thelawyerbubble.com/2015/06/02/the-dewey-trial-truth-justice-or-neither/feed/0thebellyofthebeastON THE COLUMBIA LAW SCHOOL BLUE SKY BLOG…http://thelawyerbubble.com/2015/05/28/on-the-columbia-law-school-blue-sky-blog/
http://thelawyerbubble.com/2015/05/28/on-the-columbia-law-school-blue-sky-blog/#commentsThu, 28 May 2015 17:36:43 +0000http://thelawyerbubble.com/?p=12183]]>The Columbia Law School Blue Sky Blog is now running my article, “Law School Moral Hazard and Flawed Public Policy”

Filed under: Law School]]>http://thelawyerbubble.com/2015/05/28/on-the-columbia-law-school-blue-sky-blog/feed/0thebellyofthebeastIT’S NOT TOO LATE…http://thelawyerbubble.com/2015/05/14/its-not-too-late/
http://thelawyerbubble.com/2015/05/14/its-not-too-late/#commentsThu, 14 May 2015 14:09:09 +0000http://thelawyerbubble.com/?p=12158Continue reading →]]>As my regular readers know, in February I received an unwelcome medical diagnosis: neuroendocrine pancreatic cancer. For those who have inquired, I’m happy to report that after spending 43 of 56 days in the hospital between January 28 and March 27, I’m now celebrating my eighth week at home recuperating. All things considered, I’m feeling quite well.

Readers also know that my daughter, Emma, lives in the Bay Area and is actively involved in an upcoming event to support pancreatic cancer research: Purple Stride San Francisco 2015 — a 5K family run/walk in San Francisco on May 31.

My entire family is grateful for the response of friends and readers to this cause on my behalf. For those who have not yet joined “Team Willis” — Willis is Emma’s longstanding nickname for me — you don’t have to be a runner or, for that matter, anywhere near San Francisco now, on May 31, or ever.

Anyone interested can make a tax-deductible contribution — even a nominal one is significant — to the Pancreatic Cancer Action Network. Just go to this site and click on “Donate Now.”

The focus of The American Lawyer story about Richard Levin’s departure after eight years at Cravath, Swaine & Moore understates the most important point: Levin is a living example of things that his former firm, Cravath, does right. I can count at least three.

#1: Top Priority — Client Service

Cravath hired Levin, a top bankruptcy lawyer, from Skadden, Arps, Slate, Meagher & Flom on July 1, 2007. At the time, Cravath didn’t have a bankruptcy/restructuring practice. But at the beginning of the downturn that would become the Great Recession, its clients were drawn increasingly into bankruptcy proceedings.

Explaining the firm’s unusual decision to hire Levin as a lateral partner, the firm’s then-deputy presiding partner C. Allen Parker told the New York Times that “the firm was seeking to serve its clients when they found themselves as creditors. Many of Cravath’s clients have landed on creditors’ committees in prominent bankruptcy cases, he said, and the firm has helped them find another firm as bankruptcy counsel.”

In other words, Cravath sought to satisfy specific client needs, not simply recruit a lateral partner who promised to bring a book of business to the firm. The Times article continued, “While Mr. Parker does not foreclose the chance of representing debtors — which is often considered the more lucrative side of the bankruptcy practice — for now, it is an effort to serve clients who are pulled into the cases.”

#2: Mandatory Retirement Age

It seems obvious that Levin’s upcoming birthday motivated his departure to Jenner & Block. Less apparent is the wisdom behind Cravath’s mandatory retirement rule. As The American Lawyer article about his move observes:

“[A]t 64, Levin is now approaching Cravath’s mandatory retirement age. And he says he’s not ready to stop working. ’65 is the new 50,’ Levin says. ‘I’d be bored. I love what I do [and] I want to keep doing it.'”

Well, 65 is not the new 50 — and I say that from the perspective of someone who just celebrated his 61st birthday. More importantly, sophisticated clients understand that a law firm’s mandatory retirement age benefits them in the long run because it makes that firm stronger. When aging senior partners preside over an eat-what-you-kill big law compensation system, their only financial incentive is to hang on to client billings for as long as possible. It creates a bad situation that is getting worse.

Seeger went on to explain that even if they were, younger partners are not prepared to assume client responsibilities. Why? Because older partners don’t want that to happen. According to the Altman Weil survey, only 31 percent of law firm leaders said their firms had a formal succession planning process.

At Cravath, mandatory retirement works with the firm’s lock-step compensation structure to encourage much different behavior. Aging partners confront an end date that provides them with an incentive to train junior attorneys so they can assume client responsibilities and assure an orderly intergenerational transition of the firm’s relationships. Hoarding clients and billings produces no personal financial benefit to a Cravath partner.

In contrast, hoarding is a central cultural component of eat-what-you-kill firms. Individual partners guard clients jealously, as if they held proprietary interests in them. Internal partnership fights over billing credit get ugly because a partner’s current compensation depends on the allocations. Partners have learned that the easiest way to avoid those fights is to keep their clients in silos away from other partners. For clients, it can mean never meeting the lawyer in the firm who could be most qualified to handle a particular matter. If they understood the magnitude of the problem, most clients would be astonished and outraged.

#3: Strategic Thinking

With respect to Richard Levin’s practice area, the most recent Georgetown/Thomson Reuters Peer Monitor Report notes that in 2014 big firm bankruptcy practices suffered a bigger drop in demand than any other area. Lawyers who had billed long hours to big ticket bankruptcy matters have now been repurposed for corporate, transactional, and even general litigation tasks. Don’t be surprised as firms announce layoffs.

Cravath’s timing may have been fortuitous. It hired Levin at the outset of the Great Recession — just as a big boom time for bankruptcy/restructuring lawyers began. Likewise, Levin departs as that entire segment of the profession now languishes. I think Cravath’s leaders are too smart to think that they can time the various segments of the legal market. But the firm’s strategic approach to its principal mission — client service — caused it to do the right things for the right reasons.

The harder they work at that mission, the luckier they get.

Filed under: Biglaw trends?, FROM TODAY'S HEADLINES, Leadership, News You Might Have Missed]]>http://thelawyerbubble.com/2015/05/13/cravath-gets-it-right-again/feed/0thebellyofthebeastbiglaw-450ANOTHER COLOSSAL LATERAL MISTAKEhttp://thelawyerbubble.com/2015/05/05/another-colossal-lateral-mistake/
http://thelawyerbubble.com/2015/05/05/another-colossal-lateral-mistake/#commentsTue, 05 May 2015 16:32:16 +0000http://thelawyerbubble.com/?p=12117Continue reading →]]>Lateral hires are risky. Even managing partners responding to the Hildebrandt/Citi 2015 Client Advisory’s confidential survey admitted that only about half of their lateral partners are break-even at best — and the respondents had unrestrained discretion to decide what qualified as “break-even.” As Ed Newberry, co-global managing partner of Squire Patton Boggs told Forbes, “[L]ateral acquisitions, which many firms are aggressively pursuing now … is a very dangerous strategy because laterals are extremely expensive and have a very low success rate….”

Beyond the financial perils, wise firm leaders understand that some lateral partners can have an even greater destructive impact on a firm’s culture. In late 2014, former American Lawyer editor-in-chief Aric Press interviewed Latham’s outgoing chairman Bob Dell, who was retiring after a remarkably successful 20-year run at the top of his firm. Dell explained that he walked away from prospective lateral partners who were not a good cultural fit because they stumbled over Latham’s way of doing things.

Press wrote: “Culture, in Dell’s view, is not a code word for soft or emotional skills. ‘We think we have a high-performance culture,’ he says. ‘We work at that. That’s not soft.'”

Under the Radar and Under the Rug

Most lateral hiring mistakes attract little public attention. Firm leaders have no reason to highlight their errors in judgment. Fellow partners are reluctant to tell their emperors any unpleasant truth. If, as the adage goes, doctors bury their mistakes and lawyers settle theirs, then managing partners pretend that their mistakes never happened and then challenge anyone to prove them wrong. The resulting silence within most partnerships is deafening.

Every once in a while, a lateral hire becomes such a spectacular failure that even the press takes note. When that happens, the leaders of the affected law firm have nowhere to hide. Which takes us to James Woolery, about whom I first wrote five years ago.

Without mentioning Woolery specifically, I discussed a May 28, 2010 Wall Street Journal article naming him was one of several Cravath, Swaine & Moore partners in their late-30s and early-40s taking “a more pro-active approach, building new relationships and handling much of the work that historically would have been taken on by partners in their 50s.”

“We’re more aggressive than we used to be,” 41-year-old Cravath partner James Woolery told the Journal. “This is not your grandfather’s Cravath.”

A Serial Lateral

Six months later, it wasn’t Woolery’s Cravath, either. He’d already left to co-head J.P. Morgan Chase’s North American mergers and acquisitions group.

In 2013, only two years after accepting the Chase job, Woolery moved again. With much fanfare, he negotiated a three-year deal guaranteeing him at least eight million dollars annually to join Cadwalader, Wickersham & Taft. How was the cultural fit? The firm’s chairman, Chris White, described him as “the epitome of the Cadwalader lawyer” who deserved the lucrative pay package that made him the firm’s highest paid partner. A new title created especially for Woolery — deputy chairman — also made clear that he was White’s heir apparent.

To no one’s surprise, in 2014 Cadwalader announced that Woolery would take over as chairman in early 2015. As he prepared to assume the reins of leadership, the firm took a dramatic slide. The current issue of The American Lawyer reports that Cadwalader posted the worst 2014 financial results of any New York firm. Woolery’s guarantee deal looked pretty good as his firm’s average partner profits dropped by more than 15 percent. The firm’s profit margin — 26 percent — placed it 87th among Am Law 100 firms.

On January 19, 2015, the firm’s managing partner, Patrick Quinn, convened a conference call with all Cadwalader partners to convey a stunning one-two punch: Woolery would not become chairman, and he was leaving the firm to start a hedge fund. Woolery was not on the call to explain himself.

Unpleasant Press

No law firm wants this kind of attention. No client wants its outside firm to project uncertainty and instability at the top. No one inside the firm wants to hear about someone who has now been “thrust into the role of designated chairman of the firm,” as The American Lawyer described Patrick Quinn.

Woolery is gone, and so is Chris White, the former Cadwalader chairman who sold fellow partners on Woolery and his stunning guaranteed compensation package. White, age 63, left the firm in November to become co-CEO of Phoenix House, the nation’s largest non-profit addiction rehabilitation center.

Meanwhile, newly designated Cadwalader chairman Quinn says that the firm has no plans to change its strategy, including its reliance on lateral partner hiring. Maybe Chris White can use his new job to help Quinn and other managing partners shake their addiction to laterals. Apparently, first-hand experience with failure isn’t enough.

Loose talk about “the market for law school graduates” and related optimism about future employment prospects for entering students lack analytical rigor. That’s because the job market for new law school graduates is not a single market at all. Rather, graduate employment opportunities vary tremendously across distinct law school submarkets. But tuition and resulting law student debt often bear little relationship to graduates’ employment outcomes.

Current federal policies, including unlimited educational loans that are not dischargeable in bankruptcy, ignore these differences in law school submarkets and confound the operation of a true market. Those policies allow many law schools to exploit the resulting moral hazard, namely, the absence of accountability for their graduates’ poor employment outcomes.

I propose a solution that will make many law school deans, admissions officers, and faculty squirm — as they should.

Filed under: Law School]]>http://thelawyerbubble.com/2015/04/29/law-school-moral-hazard/feed/15thebellyofthebeastTHINKING BEYOND THE AM LAW 100 RANKINGShttp://thelawyerbubble.com/2015/04/22/thinking-beyond-the-am-law-100-rankings/
http://thelawyerbubble.com/2015/04/22/thinking-beyond-the-am-law-100-rankings/#commentsWed, 22 Apr 2015 15:23:57 +0000http://thelawyerbubble.com/?p=12079Continue reading →]]>It’s Am Law 100 time. Every year as May 1 approaches, all eyes turn to Big Law’s definitive rankings — The American Lawyer equivalent of the Sports Illustrated swimsuit issue. But behind those numbers, what do law firm leaders think about their institutions and fellow partners?

The 2015 Citibank/Hildebrandt Client Advisory contains some interesting answers to that question. Media summaries of those annual survey results tend to focus on macro trends and numbers. Will demand for legal services increase in the coming months? Are billable hours up? Will equity partner profits continue to rise? Will clients accept hourly rate increases? Or will client discounts reduce realizations?

Those are important topics, but some of the survey’s best nuggets deserve more attention than they get. So as big law firm partners everywhere pore over the annual Am Law 100 numbers, here are five buried treasures from this year’s Citibank/Hildebrandt Client Advisory that will get lost in the obsession over Am Law’s short-term growth and profits metrics. They may reveal more about the state of Big Law than any ranking system can.

Chickens Come Home To Roost

1. “While excess capacity remains an issue, we are hearing from a good number of firms that mid-level associates are in short supply.”

My comment: After 2009, most firms reduced dramatically summer programs and new associate hiring to preserve short-term equity partner profits. That was a shortsighted failure to invest in the future, and it’s still pervasive. See #4 and #5 below.

The Growth Trap

2. “Many [law firm mergers] have tended to be mergers of strong firms with weaker firms, or mergers of firms that are pursuing growth for growth’s sake. On this latter trend, it is our view that these mergers are generally ill-conceived. In our experience, combining separate firm revenues does not necessarily translate into better profit results and long-term success.”

My comment: Regardless of who says it (or how often), many managing partners just don’t believe it.

The Lateral Hiring Ruse

3. “For all the popularity of growth through laterals, the success rate of a firm’s lateral strategy can be quite low. For the past few years, we have asked leaders of large firms to quantify the rate of success of the laterals they hired over the past five years. Each year, the proportion of laterals who they would describe as being above ‘break even’, by their own definition, has fallen. In 2014, the number was just 54 percent of laterals who had joined their firms during 2009-2013.” [Emphasis added]

My comment: Think about that one. The survey allows managing partners to use their own personal, subjective, and undisclosed definition of “success.” Even with that unrestricted discretion to make themselves look good, firm leaders still admit that almost half of their lateral hiring decisions over the past five years have been failures — and that they’re track record has been getting worse! That’s stunning.

Pulling Up The Ladder

4. “We are now seeing [permanent non-partner track associates and other lower cost lawyers] appear among some of the most elite firms. When we ask these firms whether they are concerned that expanding their lawyer base beyond partner-track associates will hurt their brand, their response is simply that this is what their clients, and the market in general demands.”

My comment: At best such managing partner responses are disingenuous; at worst they are lies. Clients aren’t demanding non-partner track attorneys; they’re demanding more value from their outside lawyers. Thoughtful clients understand the importance of motivating the next generation’s best and brightest lawyers with meaningful long-term career opportunities.

Permanent dead-end tracks undermine that objective. So does the continuing trend in many firms to increase overall attorney headcount while keeping the total number of equity partners flat or declining. But rather than accept responsibility for the underlying greed that continues to propel equity partner profits higher, law firm leaders try to blame clients and “the market.” For the truth, they should consult a mirror.

The Real Problem

5. “Leaders of successful firms also talk about getting their partners to adopt a more long-term, ‘investment’ mindset. In an industry where the profits are typically paid out in a short time to partners, rather than being retained for longer term investment, this can be a challenge.”

My comment: Thinking beyond current year profits is the challenge facing the leadership of every big firm. Succeeding at that mission is also the key assumption underlying the Client Advisory’s optimistic conclusion:

“It is clear to us that law firms have the capacity and the talent to adapt to the needs of their clients, and meet the challenges of the future — contrary to those who continually forecast their death.”

I’m not among those forecasting the death of all big firms. In fact, I don’t know anyone who is. That would be silly. But as in 2013 and 2014, some large firms will fail or disappear into “survival mergers.” As that happens, everyone will see that having what the Client Advisory describes as “the capacity and talent to adapt” to the profession’s dramatic transformation is not the same as actually adapting. The difference will separate the winners from the losers.

Filed under: Biglaw trends?, FROM TODAY'S HEADLINES, Leadership, News You Might Have Missed, Rankings and Other Misguided Metrics]]>http://thelawyerbubble.com/2015/04/22/thinking-beyond-the-am-law-100-rankings/feed/0thebellyofthebeastDENTONS STRIKES AGAINhttp://thelawyerbubble.com/2015/04/13/dentons-strikes-again/
http://thelawyerbubble.com/2015/04/13/dentons-strikes-again/#commentsMon, 13 Apr 2015 16:44:22 +0000http://thelawyerbubble.com/?p=12030Continue reading →]]>[NOTE: Beginning April 16 and continuing through April 20, Amazon is running a promotion for my novel, The Partnership. During that period, you can get the Kindle version as a FREE DOWNLOAD. Recently, I completed negotiations to develop a film version of the book.]

Dentons must have a large support staff whose only job is to introduce the firm’s new partners to each other. Three months ago, it joined with the massive China-based Dacheng to create the world’s largest law firm — or whatever it is. Now McKenna Long & Aldridge’s partners will merge their 420 lawyers into the Dentons North American verein.

Well, not all 420 lawyers because, as McKenna Long’s chairman Jeffrey Haidet told the Daily Report, “There will probably be some fallout from the legacy partnership. It’s unfortunate….”

There’s nothing unfortunate about the deal for Haidet, whose personal “fallout” will make him co-CEO in Dentons-US.

Eliminating The Opposition

Haidet tried to make this deal in 2013, but according to the Daily Report, it collapsed when a few key McKenna Long partners balked over concerns about losing the McKenna identity and name. The currently prevailing big law firm business model doesn’t value such dissent. So it’s no surprise that during 2014 McKenna Long lost a greater percentage of its partners (22.3 percent) than any other Am Law 200 firm.

Haidet told the American Lawyer that some of his firm’s record-setting 59 departures last year “were of partners who disagreed with the firm’s growth strategy.” That’s not surprising either, since that strategy apparently involved extinguishing the firm itself. A venerable Atlanta institution that is also highly regarded for its Washington, DC government contracts and policy work will soon disappear.

What’s Next?

If and when McKenna Long releases its financial results for 2014, the underlying motivations behind Haidet’s renewed discussions with Dentons may become clearer. Perhaps the firm’s financial performance limited its options. But this much is obvious: Compared with McKenna Long’s earlier focus that gave it a clear identity, the partners who survive this transaction will join an organization that has an open-ended goal, namely, getting bigger.

Dentons’ global CEO Elliott Portnoy told the Wall Street Journal, “There is no logical end.” That echoed global chair Joseph Andrew’s remarks in an earlier article: “We compete with everyone. We compete with the largest law firms in the world and the smallest law firms.” Combine those two thoughts from the top of Dentons’ leadership team and it sounds like an effort to be all things to any and all potential clients.

“We’re going to be driven by our strategy,” Portnoy told the Journal. Even so, it looks like the strategy is growth for the sake of growth — a dangerous path. But as Andrew put it, they’re out to prove everybody else wrong about the perils of that approach: “What we’re trying to do is to take these myths that have gathered in the legal profession and say (they’re) not true.”

“[O]nce a firm achieves a certain size, diseconomies of scale can actually set in. Large firms with multiple offices — particularly ones in multiple countries — are much more difficult to manage than smaller firms. They require a much higher investment of resources to achieve uniformity in quality and service delivery and to meet the expectations of clients for efficiency, predictability, and cost effectiveness. They also face unique challenges in maintaining collegial and collaborative cultures, particularly in the face of rapid growth resulting from mergers or large-scale lateral acquisitions.”

In addition to the quality and cultural issues discussed in my February post on the Dacheng deal, Dentons’ expanding administrative structure prompts this question: How many CEOs can a law firm have at one time? In addition to global CEO Portnoy and global chairman Andrew, Haidet will join four other current Dentons CEOs. Additional senior management will result from implementing the Dacheng deal.

Turning to the key question, the Georgetown Report notes, “[G]rowth for growth’s sake is not a viable strategy in today’s legal market. The notion that clients will come if only a firm builds a large enough platform or that, despite obvious trends toward the disaggregation of legal services, clients will somehow be attracted to a ‘one-stop shopping’ solution is not likely a formula for success.”

Compare that analysis to the Wall Street Journal’s summary of Dentons’ strategic plan: “[T]he firm hopes to become a one-stop shop for big corporations and small businesses alike.”

A Distraction?

The Georgetown Report’s most intriguing suggestion is that a law firm’s pursuit of indiscriminate growth can mask a failure of true leadership:

“Strategy should drive growth and not the other way around. In our view, much of the growth that has characterized the legal market in recent years fails to conform to this simple rule and frankly masks a bigger problem — the continuing failure of most firms to focus on strategic issues that are more important for their long-term success than the number of lawyers or offices they may have.”

As a way for law firm leaders to convince their partners that they have a strategic vision, the Report continues, growth is “a more politically palatable than a message that we need to fundamentally change the way we do our work.”

Drawing an analogy to Amity Police Chief Martin Brody’s line (delivered by Roy Scheider) in the movie Jaws, the Georgetown Report concludes,“For most firms…the goal should be not to ‘build a bigger boat’ but rather to build a better one.”

Dentons has already built an enormous boat and, as Portnoy said, “There is no logical end.” Someday soon we’ll know if it’s a better boat, and whether it even floats.

Filed under: Biglaw trends?, FROM TODAY'S HEADLINES, Leadership]]>http://thelawyerbubble.com/2015/04/13/dentons-strikes-again/feed/2thebellyofthebeastSOMETHING NICE TO SAYhttp://thelawyerbubble.com/2015/04/06/something-nice-to-say/
http://thelawyerbubble.com/2015/04/06/something-nice-to-say/#commentsMon, 06 Apr 2015 12:29:48 +0000http://thelawyerbubble.com/?p=11906Continue reading →]]>My thanks to the many readers who have contributed to my daughter Emma’s fund-raising effort for pancreatic cancer research. My February diagnosis (neuroendocrine pancreatic cancer) has made the cause quite personal. The breadth and depth of your support for our family has been been humbling.

For anyone interested in contributing — even nominally — to a worthy non-profit organization (the Pancreatic Cancer Action Network), there’s still plenty of time. Because she lives in the San Francisco Bay area, Emma is promoting a specific upcoming event, Purple Stride San Francisco 2015 — a 5K family run/walk in San Francisco on May 31. But to join “Team Willis” — Willis is Emma’s longstanding nickname for me — you don’t have to be a runner or, for that matter, anywhere near San Francisco now, on May 31, or ever. Just go to this site and click on “Donate Now.”

Now, Back to Our Story

After my series of posts about dysfunction within the American medical system, it’s worth pausing to reflect on its positive attributes.

Foremost are the professionals dedicated to patient care. The best of the best are willing to take command of challenging health situations, as mine surely is. They utilize their formidable talents to achieve the best possible outcomes. I was fortunate to have several of these individuals working diligently to save my life. Now they’re trying to improve it.

Like most health care workers, these doctors entered the profession with a clear purpose: to do good. Many also began their careers when the medical care delivery system looked much different from its current configuration. Physicians had more influence over hospital policies. Indeed, doctors ran many more hospitals than they do today. Primary care doctors visited their in-patients daily. Continuing relationships and direct contact with patients helped make the physician’s job rewarding.

A Loss of Personal Mission

As it has evolved in recent years, the medical delivery system has destroyed aspects of this physician-patient relationship. Many experienced doctors have lost their feeling of connectedness with patients. That’s a shame because without a vested stake, the doctor who is able to distance himself from a patient has sacrificed an important part of the personal motivation that makes him or her most effective.

Once a physician views a patient as an abstraction who parades through the system as a collection of conditions, symptoms, and test result numbers to be dealt with — and then moved along to make room for the next patient — the medical profession loses a piece of what makes it a profession. There is nothing conscious or even unique about this phenomenon. It’s human nature for people to care more about what they’re doing if they feel a sense of personal commitment to and responsibility for the outcome.

It’s Not Just Doctors, It’s People

Drawing from my own profession — the law — the most effective senior attorneys give young lawyers working on discrete pieces of a large case a sense of how the individual parts relate to the whole. Even better than that, providing a young lawyer with the opportunity to work directly with clients is the ultimate motivator.

As with older lawyers, senior physicians entered their profession in large part because of they wanted to help individuals. A personal connection to patients was important to that process. Many younger doctors — like their modern attorney contemporaries — have grown up in a different environment, namely, a culture of metrics, numbers, and protocols. In that culture, the physician-patient connection takes a back seat to a relatively new concept: medical worker productivity.

Here’s one example. An earlier post in this series discussed how my blood draws occurred at times times that were not only unrelated to patient care, but also undermined it by disrupting sleep at 4:00 am. As it turns out, that particular situation might actually be worse than I thought.

Recently, one hospital worker told me that blood draws in his hospital (not where I stayed) are timed so that all patients can be completed before a pre-determined deadline. That per-patient time limit makes some phlebotomists worry about taking too long, incentivizes them to rush, and causes the needle to miss a patient’s vein on the first attempt. It is the opposite of a patient-centered medical protocol. The alternative: hire more staff and abolish the time limit. But that would add expense and reduce the hospital’s bottom line. My guess is that the timed blood draw rule is not unique.

The current culture has resulted from non-medical personnel imposing rules in the quest for greater efficiency, as any profit-maximizing business does. But medicine and law are supposed to be different. All too often, rules pursuing efficiency and profit (even in a non-profit medical organization) ignore the impact on patient experiences and outcomes.

Myopic Metrics

The business-oriented world of metrics can’t capture the value of things that are not easily measured. Connectedness between physician and patient is one such immeasurable value that has a big impact on patient experiences and outcomes. It also has an effect — not subject to measurement or a metric — on a physician’s motivation and job satisfaction.

A second feature of American medicine that makes it among the best in the world is its technology. The diagnostic and treatment devices that my doctors have used are staggering in their complexity. (They’re expensive, too.) What has evolved into my positive prognosis (relatively speaking) is a consequence of that technology.

The ongoing challenge is to devise a way to preserve the best aspects of American medicine while eliminating its deeply troubling features. I don’t know how the necessary changes will happen. But as I’ve written with respect to a similar devolution of the legal profession — law schools’ undue reliance on U.S. News rankings and law firms’ preoccupation with short-term profits metrics as definitive indicators of success — the first step is exposing the problems.

A U.S. Supreme Court justice’s observation from long ago still rings true: “Sunlight is the best disinfectant.” In law and in medicine, many talented and compassionate people are using remarkable technological advances to do a superb job. But in both professions, we can do a lot better.

Maybe the book that Emma and I have begun to write about my 43-day hospital experience will help. Based upon the overwhelming reader reaction to this series so far, there’s an audience for it — that’s for sure.

Filed under: American Medical System, Pancreatic Cancer]]>http://thelawyerbubble.com/2015/04/06/something-nice-to-say/feed/2thebellyofthebeastA NEW YORK TIMES COLUMN MISFIREShttp://thelawyerbubble.com/2015/04/01/a-new-york-times-column-misfires/
http://thelawyerbubble.com/2015/04/01/a-new-york-times-column-misfires/#commentsWed, 01 Apr 2015 15:48:08 +0000http://thelawyerbubble.com/?p=11996Continue reading →]]>My unwelcome diagnosis and resulting detour into our dysfunctional medical system diverted my attention from scrutinizing commentators who make dubious assertions about the current state of the legal profession.

To keep this post a manageable length, here’s a list of points that Solomon got wrong in his enthusiastic account of why the legal industry is on the rise. As a professor of law at Berkeley, he should know better.

“The top global law firms ranked in the annual AmLaw 100 survey experienced a 4.3 percent increase in revenue in 2013 and a 5.4 percent increase in profit.”

That’s true. But it doesn’t support his argument that new law graduates will face a rosy job market. Increased revenue and profits do not translate into increased hiring of new associates. In most big firms, profit increases are the result of headcount reductions at the equity partner level – which have been accelerating for years.

“Bigger firms are hiring.”

Sure, but nowhere near the numbers prior to Great Recession levels. More importantly, big firms comprise only about 15 percent of the profession and hire almost exclusively from the very top law schools. Meanwhile, overall employment in the legal services sector is still tens of thousands of jobs below its 2007 high. Even as recently December 2014, the number of legal services jobs had fallen from the end of 2013.

“Above the Law, a website for lawyers, recently reported a rising trend for lateral moves for lawyers in New York.”

Apples and oranges. The lateral partner hiring market — another big law firm phenomenon that has nothing to do with most lawyers — is completely irrelevant to job prospects for new entry-level law school graduates. Even during the depths of the Great Recession, the former was hot. The latter continues to languish.

“Last year, 93.2 percent of the 645 students of the Georgetown Law class of 2013 were employed.”

That number includes: 83 law school-funded positions, 12 part-time and/or short-term jobs, and 51 jobs not requiring a JD. Georgetown’s full-time, long-term, non-law school-funded JD-required employment rate for 2013 graduates was 72.4 percent – and Georgetown is a top law school. The overall average for all law schools was 56 percent.

“[Michael Simkovic and Frank McIntyre found that a JD degree] results in a premium of $1 million for lawyers over their lifetime compared with those who did not go to law school.”

“[The American Bar Foundation’s After the JD] study found that as of 2012, lawyers had high levels of job satisfaction and employment as well as high salaries.”

It also found that by 2012, 24 percent of the 3,000 graduates still responding to the study questionnaire are no longer practicing law. The study’s single class of 2013 originally included more than 5,000 — so no one knows what the non-respondents are doing.

7. “Law schools have tremendous survival tendencies. I have a bet with Jordan Weissmann at Slate that not a single law school will close.”

Yes. Those “survival tendencies” are called unlimited federal student loans for which law schools have no accountability with respect to their students employment outcomes. If Solomon wins that bet, it will be because a dysfunctional market keeps alive schools that should have closed long ago.

Whatever happened to the News York Times fact-checker?

Filed under: Biglaw trends?, FROM TODAY'S HEADLINES, Law School, News You Might Have Missed]]>http://thelawyerbubble.com/2015/04/01/a-new-york-times-column-misfires/feed/4thebellyofthebeast“IT’S HOSPITAL POLICY…”http://thelawyerbubble.com/2015/03/28/its-hospital-policy/
http://thelawyerbubble.com/2015/03/28/its-hospital-policy/#commentsSat, 28 Mar 2015 18:47:19 +0000http://thelawyerbubble.com/?p=11956Continue reading →]]>When a patient tries to get a doctor to focus on his or her specific situation, the least helpful words from the doctor are: “It’s hospital policy…” Add the doctor’s effort to calm the patient with “I understand your frustration,” and then combine it with the physician’s admission: “I haven’t reviewed your file.” Now try to restrain yourself as it becomes clear that she has no intention of ever doing so.

In my living example, during my third hospitalization I contracted a blood infection — VRE — almost certainly as a result of minimally invasive procedures to stop a pesky GI bleed. Powerful antibiotics squashed the infection and I went home. When I showed up a week later in the emergency room, they put me in isolation. I had no idea why until 10 days later, when my nurse told me that my record showed that I had a history of VRE.

That evening, another nurse undertook a comprehensive view of my file and concluded that I never required isolation because the VRE infection was blood-based. The sign on my door came down; those entering my room no longer downed flimsy disposable “isolation” gowns.

Problem solved? So it seemed. For the next five days, no health care worker visiting me wore the plastic blue gowns.

Groundhog Day

On the sixth day, another nurse showed up wearing an isolation gown.

“I’m here to do your rectal swab,” she said.

“Why?” I asked. “Last week, a nurse went through my file to discover that I had a blood infection VRE. It’s been gone for weeks.”

“I’m just following the directions I got from the infectious disease nurse,” she said.

After I explained the backstory, my nurse acknowledged the confusion: “I’ll have the infectious disease nurse call you.”

“No,” I said. “Not a nurse. I want to talk to the infectious disease attending physician. Let’s straighten this out once and for all.”

An Incredible Conversation

About 15 minutes later, the phone rang.

“Mr. Harper, I’m the infectious disease doctor,” said the voice on the other end. “I understand you have some questions about our isolation policy.”

“No,” I answered. “I have a problem with the confusion surrounding the handling of my situation. I don’t know how familiar you are with my case.”

“I just want to explain to you what our policy is. When you have a positive VRE, you have to test negative by rectal swab for three consecutive weeks before you are removed from isolation.”

“Well, the fact that you’re not familiar with my file is the whole problem,” I said. “There’s no continuity of care in this place and important information about me is not getting through.”

I then explained my situation to her. She listened, and then responded as if she hadn’t heard a word I’d said.

“I understand your frustration,” she said. “But you understand that we have hospital policies to protect health care workers from transmitting VRE. We follow national guidelines in that respect. Hospital policy requires that you have three negative swabs — each one a week apart — before you can be removed from isolation.”

“Well, in my specific case,” I said, “about which you have told me you know nothing, you’ve already blown two other hospital policies,” I said. “No one swabbed me a week after my admission.”

Silence on the other end of the phone.

“Then, five days ago, my nurse determined that I never had VRE for which a swab is appropriate. She removed the isolation sign on my door. Every health worker since then has entered my room without putting on a disposable gown. So there’s policy violation number two.”

“You were in isolation because of your history of VRE,” she responded. Now she was talking in circles. “It’s up to the individual initiative of the nurse to take swabs that get patients out of isolation.”

“Are you an attending physician?” I asked. She said she was.

“Do me a favor,” I said as I concluded my losing battle. “In a quiet moment, I want you to reflect on this conversation. I don’t care whether I get swabbed. That’s not the point. The point is that you haven’t reviewed my file and you have no idea whether the policy you’re defending has anything to do with me, the patient.”

I hung up and summoned the nurse.

“I give up,” I admitted. “Go ahead and swab me.”

After the standard 72-hour period for processing the culture, the lab hadn’t posted the results. Day four: still nothing posted and none of the nurses could figure out why it was taking so long. Finally, five days after the swab and as I was getting discharged from the hospital, I asked the resident to see if the lab had posted the results.

“Here it is,” he replied as he viewed the computer screen. “It says ‘Rare VRE.’ I think it means ‘not very much.’ But the next time you come back to this hospital — hopefully never — it will carry forward to show that you’re VRE-positive.”

I didn’t care. After 19 days in the hospital — bringing my cumulative in-hospital tenure to 43 of the prior 60 days — I was going home.

By the way, lest you think that I have only bad things to say about America’s medical care delivery system, my next post will discuss its best feature: the outstanding health care workers who change patients’ lives for the better.

Filed under: American Medical System, Pancreatic Cancer]]>http://thelawyerbubble.com/2015/03/28/its-hospital-policy/feed/7thebellyofthebeastBIG LAW — BIG MED — BIG MESShttp://thelawyerbubble.com/2015/03/23/big-law-big-med-big-mess/
http://thelawyerbubble.com/2015/03/23/big-law-big-med-big-mess/#commentsMon, 23 Mar 2015 14:02:10 +0000http://thelawyerbubble.com/?p=11928Continue reading →]]>A month ago, I informed readers that I was taking a break from my ongoing commentary on the legal profession. Instead, I’ve focused my blog on my personal journey through modern medicine after my cancer diagnosis. The American Lawyer, which has republished all of my “Belly of the Beast” blog posts for the past five years, ran the post inaugurating my new series. But I haven’t asked it to republish my eight subsequent medically-oriented posts, which seemed beyond the interests of its primary readership. For reasons that will become evident, I’m inviting republication of this one.

Having spent almost 40 of the past 50 days in the hospital, I’ve had an intimate look at the medical care delivery system from inside one of the nation’s top institutions. I’m now convinced that many big hospitals and law firms share an important characteristic: a lost sense of mission.

This criticism doesn’t apply to most lawyers or to doctors individually. Dedicated, conscientious physicians and attorneys abound. But the devolution of the leading segments of both professions to short-term business-oriented approaches has resulted in structures and constraints within which many of those practitioners must operate. Ultimately, clients, patients, and the workers within those institutions are paying the price.

As the New York Times reported recently, “[N]ew research suggests that having a doctor in charge at the top is connected to overall better patient care and a better hospital.”

“Dr. [Amanda] Goodall [the author of the study] said the finding was consistent with her research in other fields, which has shown, among other things, that research universities perform better when led by outstanding scholars and that basketball teams perform better when led by former top players.”

Dr. Goodall goes on to observe, “M.D. C.E.O.’s are more likely to prioritize patients because patient care is at the heart of their education and working life as a physician. When it comes to making hard budgetary decisions or rationing choices, M.D. C.E.O.’s may be able to make more informed decisions.”

Keeping The MBA-Mentality In Check

I’m not an anarchist. I have a master’s degree in economics and understand the importance of data-drivien decisions. But I also appreciate the limitations of statistics and the dangers of a myopic MBA-type approach to management. There is nothing wrong with using accounting and business methods in the process running complex organizations, including big hospitals and law firms. But when those methods dominate institutional culture — setting the tone from the top of a hospital or law firm — those organizations no longer exist to serve people. Instead, they develop a new purpose: to serve the short-term bottom line.

As Dr. Goodall suggests, ““I think the pendulum may have swung too far in the favor of managers. This is partially because business schools have become so prominent, as has the M.B.A. These qualifications are helpful, but it is possibly not enough just to have a management education.”

Lawyers still run most big law firms, but the trends toward non-attorney CEOs and non-attorney managers developing increasing power and influence within big firms is well underway. More pointedly, many lawyers in big firms have obtained MBAs and are increasingly relying on their newly-learned “management tools” to run their firms. That can be okay, provided they do not become too fond of their “MBA-hats” and lose sight of their more important JD mission — to serve clients. It’s easier said than done because maximizing short-term partner profits is how such leaders — and their partners — measure successful leadership.

Back To Basics

Most undergraduates go to law school because they want to do good. That message has emerged loudly and clearly from my prelaw students over the nine years that I’ve taught undergraduates at Northwestern’s Weinberg College of Arts & Sciences and over the more than 20 years that I’ve taught trial practice and legal ethics courses at the Law School. A similar impulse drives most people into the medical profession. Just as every lawyer’s mission should be to serve clients, medical care should be about a single-minded mission: patient care.

The dominant big law firm model has evolved away from helping clients and toward maximizing a firm’s short-term profits through a handful of definitive metrics — billable hours, hourly rates, equity partner leverage. Likewise, big medicine — if I can call it that — has succumbed to similar pressures — maximizing relative value units (medicine’s equivalent to the billable hour metric), minimizing costs, and squeezing workers in an effort to improve “productivity,” to name a few.

Similarly, a dominant and incorrect perception in both professions is that bigger is always better. The number of law firm mergers sets a new record every year. Hospital merger and acquisition activity is ubiquitous.

Lost Along The Way

Bigger isn’t better. As with law firms, increasing the size of hospitals works against efforts to create a sense of community, collegiality, and shared mission. Likewise, cost-saving isn’t appropriate when non-medical CEOs with MBAs introduce efficiency measures that ignore the potentially adverse impact on patients.

For more than two weeks, I’ve lived through situations that illustrate my point. For example, I don’t know the metric by which administrators set what they regard as appropriate staffing levels. But one nurse told me that some floors are regarded as “heavy” — meaning that patients have conditions that can require a lot of attention. That translates into greater demands on a nurse’s time. But if there aren’t enough nurses to handle the workload, the burden falls on those who are around. Transferring to a different floor or facility becomes an escape route. It would be interesting to study the nurse “attrition rate” from the “heavy” floors.

Law And Medicine

In the prevailing big law firm model, overworking people — attorneys and staff — maximizes revenues while controlling costs. One consequence is a five-year associate attrition rate for big law firms averaging 80 percent. In other words, for every 100 associates who begin their careers at a large firm, only 20 will still be working there five years later. Other consequences are more difficult to measure so they get ignored: the decline in worker morale and the lost productivity that results.

Do extraordinary associate turnover rates serve client interests? No. Do they foster a climate in which a shared mission of client service becomes the institution’s dominant ethic? No. Do they reflect short-term profit-maximization goals that are completely inappropriate for a profession that should regard itself as better than that? You bet.

Other instances from my medical experience seem equally divorced from what should be a central focus on the patient. They may seem trivial, and none is life-threatening. But collectively they reveal something about institutional focus.

For example, a patient may require periodic blood draws, but the doctors defer the timing of those draws to whenever the phlebotomists are “doing everyone else on the floor.” That might be efficient, but on my floor, that designated time is 4:00 am. Why does efficiency in the use of phlebotomists trump the patient’s need for sleep?

Here’s another: At 11:00 pm, when all of the lights in my room were out and I’d just fallen asleep, someone came in and emptied all of the trash cans. The following morning, I asked the nurse, “Who decided that 11:00 pm was a good time to go around waking people up to empty their trash?”

“That’s just when they come around,” she answered.

These and many other dictates from above govern behavior throughout the hospital. Where does the patient fit in the process of pursuing worker efficiency? At least when it comes to blood draws and trash removal, nowhere, it would seem.

Shakespeare Updated

Scholars still debate the meaning of Dick the Butcher’s line in Shakespeare’s Henry the Sixth: “First thing we do, let’s kill all the lawyers.” Were the Bard’s words — speaking through that anarchist — backhanded praise acknowledging attorneys as the source of law and order? Or was he going for the laugh that the play evidently received from contemporaneous audiences that had become weary — as Shakespeare himself had — of the misery that litigious lawyers could inflict on a person’s life?

Regardless of that controversy, I hereby invite debate on a new version of that line. I’ve adapted it to today’s medical and legal worlds: “First thing we do, let’s kill all the MBAs in big law and big med — so doctors and lawyers can recapture their professions.”

Actually, we don’t have to kill the MBAs. We just have to keep them in their proper place.

Filed under: American Medical System, Biglaw trends?, Pancreatic Cancer]]>http://thelawyerbubble.com/2015/03/23/big-law-big-med-big-mess/feed/14thebellyofthebeastCOMPUTERIZED INFORMATION OVERLOADhttp://thelawyerbubble.com/2015/03/20/computerized-information-overload/
http://thelawyerbubble.com/2015/03/20/computerized-information-overload/#commentsFri, 20 Mar 2015 15:11:36 +0000http://thelawyerbubble.com/?p=11911Continue reading →]]>“I see you have a history of VRE,” said my nurse as I passed the mid-point of my fourth hospital admission.

“What’s that?” I asked.

“It’s a common infection that people sometimes get in the hospital,” she answered.

“Well, this is my fourth admission. I’ve been here for almost 40 of the last 50 days, and no one has ever mentioned that before,” I replied.

“It’s the reason everyone has been coming in here wearing disposable isolation gowns,” she continued.

I had wondered what that was about. From the team of doctors making daily rounds to the people delivering my meals, all donned the disposable gowns before entering my room. No one had ever told me why. I’d thought that it was simply a precaution that applied to everyone on my cancer floor.

“After three clear swabs, you won’t have to worry about it anymore,” she concluded.

“Swabs of what?” I asked.

“Didn’t someone take a rectal swab last Tuesday?” she wondered.

“No. Other than in the ER at the time of my admissions, no one has ever swabbed any part of me,” I said.

“Hmmmmm…..,” she seemed puzzled, as was I.

Information Overload

The digital compilation of patient medical records was supposed to increase efficiency. It reminds me of a time when many in the legal profession hailed the onset of computerization as something that would make discovery — the mutual exchange of documents by adversaries in litigation — easier, cheaper, and less burdensome than dealing with paper. Today, a cottage industry of electronic-discovery vendors is grateful for how that turned out. Clients who continue to pay enormous amounts dealing with written and electronic discovery in big cases have a somewhat different view.

In some ways, computerization helps. Doctors can access patient records remotely. All relevant data appears in one place. Moving records from one care location to another is easier.

Computers also increase the ease with which many different people can enter information into a patient’s file. That becomes a mixed blessing that boils down to three words: too much information. Separating the important from the irrelevant becomes a daunting challenge.

Too Much Information; Too Little Time

Meanwhile, cost-saving systems dictated by hospital CEO’s with MBA’s in pursuit of greater efficiency — which translates into greater demands on individual medical workers — exacerbate the problem. Those workers have less time to wade through all of the potentially relevant information.

The most important advantages of computerized medical records get lost when those responsible for the delivery of patient care don’t read the the information that matters. It’s the peril of providing anyone with too much information — but with no filter allowing them to separate what matters from what doesn’t.

That takes me back to the nurse’s comment about my “history of VRE.”

Good Nurses Make a Big Difference

After our conversation about the VRE infection that I supposedly had, the nurse explained the situation to her successor on the night shift. The next morning, my night nurse came into my room with the answer.

“When you were in the hospital last time, you contracted a blood infection,” she began.

“I know,” I said. “Probably the result of a procedure here. It was one of the worst experiences I’ve ever had. They treated it with a broad spectrum antibiotic.”

“I went back through all of the notes and found the detailed report of that infection,” she said proudly. “It showed that the term VRE referred to the type of blood infection you had, not the kind of VRE that is common in hospitals and detected by rectal swab. You’ve never had the common kind.”

“Good grief,” I replied.

“When someone saw or heard that you had a history of VRE, everyone assumed that you had the more common VRE that requires isolation and disposable gowns for medical people entering your room. But you don’t. In fact, your last blood screen tested negative for that blood infection version of VRE as well. You could still get the more common type of VRE while you’re in the hospital, but you don’t have it now and never have had it.”

“So people have been wearing those disposable gowns for no reason?” I asked. It seemed unlikely that the flimsy gowns accomplished any meaningful protection against transmitting infection anyway. But as one doctor told me, they were “hospital protocol.” I wonder how much this “protocol” costs whoever ultimately pays for it.

“Right,” she said. “The isolation sign on your door can come down.”

“Thank you for your conscientiousness,” I told her.

“No problem,” she said. “I like investigating things and finding answers. “Part of the problem is that when you go through all the computer notes from all the different doctors entering things from everywhere, there’s almost too much information. It’s hard to sort it all out.”

“Well, you did and I’m very grateful to you,” I said. I thought that she would be a good doctor.

And remember, I’m at one of the finest medical facilities in the world.

Filed under: American Medical System, Pancreatic Cancer]]>http://thelawyerbubble.com/2015/03/20/computerized-information-overload/feed/4thebellyofthebeastBETTER TO BE THE PATIENT?http://thelawyerbubble.com/2015/03/18/better-to-be-the-patient/
http://thelawyerbubble.com/2015/03/18/better-to-be-the-patient/#commentsWed, 18 Mar 2015 14:52:02 +0000http://thelawyerbubble.com/?p=11791Continue reading →]]>My daughter lives in Berkeley and she wasted no time in reacting. Upon learning of my third hospitalization, she boarded a plane and flew to Chicago. Along with my wife, she would remain at my side until we all returned home more than two weeks later.

She and her fiancé are avid runners. So shortly after learning my diagnosis, she found an upcoming charity run/walk in San Francisco in support of pancreatic cancer research. She organized “Team Willis” — after her longtime nickname for me.

To become part of my team, you don’t have to be a runner, walker, or anywhere near San Francisco now or on the date of the event. You don’t even have to leave your chair. Just go to the “Team Willis” page, click “Donate Now,” and become a member of the Team Willis Honor Roll as you contribute to a worthy cause. (You don’t have to click the “Join Team” link, which is more complicated. “Donate Now” will put you on my team.)

Emma’s response is just one small example of the breadth and depth of support that she, other family members, and friends have provided. I’ll have more to say about that later in this installment. But first, let’s return to my narrative.

A Decided Improvement In My Environment

The bad news about my third hospital admission in three weeks is that it would last 18 days. The good news is that I spent the final two weeks on the specially designated cancer floor. At long last, I’d finally reached the point where I was communicating directly with top specialists who would guide my treatment.

There was a team of hospitalists on the scene, too. But they were oncologists who viewed me holistically — as had the senior GI doctor who ordered a CT scan because he sensed a potential problem that standard endoscopy protocol would have caused a less talented physician to overlook. My new team considered every medical issue in the larger context of my cancer diagnosis. And they had no reluctance to answer my questions by having an attending specialist visit my room personally.

There’s no reason to detail all of the many procedures that followed my definitive diagnosis: neuroendocrine pancreatic cancer. It’s the “good” kind of pancreatic cancer for which life expectancy is measured in years, rather than months. It’s treatable with monthly injections, rather than chemotherapy to which such tumors don’t respond. As an integrated unit under the direction of the cancer specialist who embraced his role as captain of my ship, my team also went to work on the more pressing challenge: my internal bleeding.

To Summarize…

So far, my story has focused on my extended and intimate encounter with the medical system generally, including some of its particularly dysfunctional aspects. Some of that dysfunction is the result of a myopic focus that is too common in modern medicine. Specialists may know their specialities, but sometimes they fail to think outside the boxes that they’ve built for themselves.

Another contributor is the tendency of some doctors to treat specific conditions (or, even worse, numbers associated with various laboratory test results), rather than whole patients. There’s a tendency throughout our society to rely on the false comfort of some metric to guide decision-making. Relying on a number is easy, but without the accompanying wisdom and judgment to give it context, the results can be problematic, or even dangerous.

Perhaps the most ubiquitous factors inhibiting the delivery of better patient care are top-down organizations and the dominant influence of senior non-medical administrators (along with federal government and insurance company reimbursement policies). In earlier times, doctors ran most hospitals. Now, hospital CEOs have MBAs, not MDs. But they set the rules, immutable chains of command, and protocols within which doctors and other medical personnel must operate. According to a recent study published in the NY Times, patient care has suffered as a result of the medical professions transformation to this business orientation. Sound familiar to any big law firm attorneys out there?

On the More Personal Side

I haven’t discussed the more personal aspects of my illness. There’s a reason for that. I don’t want emotional, psychological, physical, or other details of my situation to cause readers to think that I view my journey as courageous. It’s not. Nor do I want to provide ammunition to critics who might think that I’m being self-indulgent, seeking sympathy, or pursuing an agenda of self-absorption.

Still, my narrative would be incomplete without mentioning the value of the support that I have received along the way. My wife has remained by my side from the beginning as she quickly abandoned every aspect of what had been her life as a college professor and private tutor at the time of my first hospital admission. Nurses have become accustomed to providing her with sheets, blankets, and a pillow for continuous overnight stays with me. She now knows where they keep all of that bedding and gets it herself.

Likewise, our three adult children have rallied to my side. I live in Chicago; they’re spread far and wide with significant responsibilities of their own. One son lives in Virginia and has three kids for whom he has principal household responsibility while his wife works full-time. He’s also teaching a college course and working as a research assistant as he finishes his Ph.D. in education. Yet he’s made regular plane trips to visit me in the hospital. Another son lives in Los Angeles. He has been both present and on-call for an expedited trip home whenever necessary.

Our daughter has put in the longest stints at my side — literally weeks at a time. Likewise, my sisters, brother, my mother have made themselves available at any hint from my wife or me that they might be helpful. Friends have been ceaseless in offering their concerns, hopes, and prayers for me and my family. Even readers of this blog who don’t know me at all have provided a surprising and welcome source of cheer. I’m grateful to all of you.

One Patient’s Perspective

All of this is, of course, extraordinary and helpful. But let me pause here to offer an observation: I think that an ordeal like mine is easier for the patient than for those closest to him or her.

Perhaps my response is idiosyncratic. But at least for me, it is genuine. My current condition and response to it don’t make me a hero. I’m just someone with a terminal illness that has introduced great uncertainty into his life. After developing confidence in the professionals treating me, I’ve found myself moving toward a sense of calm resignation about whatever the future holds. As doctors present treatment options, I try to make the most informed decisions possible. But I have little control over where all of it will lead.

That is not to say that I’ve become fatalistic, or even pessimistic. Far from it. Throughout my life, I’ve always seen my glass as half-full. That hash’t changed. “Woe is me” is no recipe for coping with situations like mine. Taking things as they come has developed new meaning as a dominant theme of my life.

But for those watching a patient go through tests, procedures, and the rest, achieving that state of mind is more difficult. The newly diagnosed illness has introduced great uncertainty into their lives as well. Adjusting to that unwelcome situation is a challenge. Being supportive to the patient adds another layer of difficulty in meeting it.

Don’t get me wrong. I don’t relish occupying the “patient position” in all of this. No one would or should. But as I view things currently, the emotional toll on those closest to me seems to be greater on them than it is on me.

Anyway, after 18 days, my third hospital admission ended and I went home. Two days later, our daughter returned to Berkeley.

No one knew for sure whether the internal bleeding problem had been resolved. Thrice weekly monitoring of my hemoglobin level at a local hospital would provide some protection against a dramatic blood loss and related crisis that had led to my third hospital admission. No more trips in the local fire department rescue vehicle for me.

The monitoring plan worked. After my first week at home, my hemoglobin level dropped significantly between Friday and the following Monday morning. When my primary care physician called to give me the Monday morning results, she told my wife and me to return to the major medical center emergency room that we’d seen all too often in recent weeks. My fourth admission would soon begin as the search for the source of my internal bleeding continued. As I write this entry, that admission has lasted for 10 days — and I expect to be hospitalized a while longer.

Never Stop Laughing

As I’d begun telling the specialists who were treating me, I was looking forward to the day when I’d be just another cancer patient. To a person, they appreciated my sense of humor. For me, retaining the ability to generate a laugh was still the best way to deal with adversity.

So here’s my advice: retain your sense of humor. If you don’t have one, then work on it. Someday you might really need it.

Filed under: American Medical System, Pancreatic Cancer]]>http://thelawyerbubble.com/2015/03/18/better-to-be-the-patient/feed/6thebellyofthebeastTREATING NUMBERS, NOT PATIENTShttp://thelawyerbubble.com/2015/03/15/treating-numbers-not-patients/
http://thelawyerbubble.com/2015/03/15/treating-numbers-not-patients/#commentsSun, 15 Mar 2015 13:17:44 +0000http://thelawyerbubble.com/?p=11770Continue reading →]]>When my third hospital admission eventually put me on the cancer floor, it seemed that I was someplace where doctors treated me holistically, rather than as a set of unrelated conditions for them to manage. Similarly, the oncological doctors who saw me during regular morning rounds regarded me as a patient, rather than as a compilation of numbers from various test results.

My regular readers — and those who have read my book, The Lawyer Bubble – A Profession in Crisis — know how a myopic focus on short-termism and the metrics that purport to maximize near-term success have undermined the legal profession. Law schools seek to maximize U.S. News rankings, even though the underlying rankings methodology has little to do with the quality of a student’s legal education. Most big law firms obsess over annual Am Law rankings and short-term profits, while ignoring important long-term values that are difficult to measure — including, mentoring, collegiality, and institutional stability.

Our metrics and data-driven society has swamped the medical profession, too. Don’t get me wrong; I’m not an anarchist. I have a master’s degree in economics and understand the importance of data in making sound decisions. But exclusive reliance on numbers without adequate consideration of context, surrounding circumstances, and potential factors that numbers don’t always capture can lead to incomplete and even incorrect conclusions.

My first two hospital admissions provided many examples of the myopia that can impair judgment and wisdom. During the final hours preceding my first hospital discharge. All eyes focused on whether my blood counts (especially hemoglobin) were high enough to send me home. The previous day’s number was 8.7 — far lower than the 14.5 at my annual physical exam six months earlier — albeit high enough to let me leave. But then on the morning of my scheduled discharge a new number arrived: my hemoglobin had dropped to 8.0.

“We can’t discharge you with 8.0,” the resident said. He was a member of hospital’s internal medicine team — the people who are supposed to take the place of your PCP when you’re in the hospital. “I think the earlier, higher 8.7 number was an outlier.”

A few hours later, the next set of blood tests came back with an 8.7 hemoglobin level.

“I think the 8.0 was an outlier,” the resident said.

It was an interesting approach to statistical analysis: Take the most recent value, compare that number to its predecessor, and declare anything inconsistent with the most recent value an outlier.

I didn’t care. I wanted to go home. Based on everything the GI specialists had told me about the results of my colonoscopy and endoscopy, it seemed that things had resolved themselves.

Except for the elevated blood sugar levels. That led to the resident’s incomplete analysis of a second number.

“You definitely have diabetes,” the resident continued as he gave me discharge instructions.

“How is that possible?” I asked. “At my last physical — and for years previously — my blood sugar levels were well within normal range. I’ve unintentionally lost 25 pounds in two months and was slim before all of that started.”

The resident stared at the numbers on the printout of my lab results.

“All I can say is that you definitely have diabetes. One of these measurements allows us to see how your blood has been for the past three months. You’ve had elevated sugar levels for the last three months. You should follow-up with your PCP. Diet and exercise can make a big difference in controlling diabetes.”

“Until this episode, I was working out for 30 minutes on my elliptical trainer every day,” I explained.

“Maybe more exercise,” he suggested. “Maybe better diet.”

Likewise, a few days latter when I entered the hospital for the second time, the initial blood work in the ER again showed elevated sugar levels.

“Are you diabetic?” the nurse asked.

“Six months ago, I wasn’t,” I said. “And since leaving the hospital five days ago, my wife and daughter have structured my diet to eliminate sugar altogether.”

“Hmmmm,” the nurse said. “Well, your sugar level is quite high.”

The words of my wife — who is not a doctor — echoed in my head. On the drive toward what would become my first hospital admission, I told her that my PCP had reported high sugar levels from the initial blood test in his office that had everyone focused on my low hemoglobin. Her immediate response: “Pancreas.”

But not until the end of my second hospital stay would the results of a CT scan pierce the general medicine hospitalists’ (and some specialists’) narrow view of what could be happening to me. That scan happened only because a talented GI specialist thought outside the box while performing my second endoscopy. His predecessor had been looking for obvious signs of bleeding. But a different GI specialist did the second endoscopy. Although he didn’t see evidence of bleeding, he saw bulges that led him to worry that pressure might be creating varicies — distressed blood vessels that could produce significant intermittent bleeding. To investigate that possibility, he order a CT scan that revealed the tumor on my pancreas.

The GI specialist who performed my second endoscopy saved my life because he thought beyond the specific condition that he was looking for. His intuition — not subject to a protocol or a metric — was critical. Only then, did I become a patient, rather than a collection of test results and unrelated conditions.

Filed under: American Medical System, Pancreatic Cancer]]>http://thelawyerbubble.com/2015/03/15/treating-numbers-not-patients/feed/3thebellyofthebeastA BRIEF RESPITE AND A NEW MEDICAL TEAMhttp://thelawyerbubble.com/2015/03/13/a-brief-respite-and-a-new-medical-team/
http://thelawyerbubble.com/2015/03/13/a-brief-respite-and-a-new-medical-team/#commentsFri, 13 Mar 2015 13:37:43 +0000http://thelawyerbubble.com/?p=11852Continue reading →]]>Forty-eight hours after returning home, I found myself in our local fire department’s rescue squad vehicle as it sped to the nearest hospital. It had been an especially tough night for my second son. As he helped me get to the bathroom during the early morning hours, I’d lost consciousness. He thought that I’d died in his arms. It was no picnic for my wife, either.

The local hospital did a great job keeping me alive. My hemoglobin had dropped to dangerously low levels — 4-point something. Three units of blood later, the ER physicians had stabilized me and I went to the ICU.

Given my new diagnosis, the next logical step was a transport to the major medical center that had treated me previously and where specialists were already lined up to perform important diagnostic tests the following day. I had confirmed that those specialists were among the world’s leading experts in my condition. I was ready for them to start working on me.

At the end of the day, the transport service took me to the medical center where the intensive care unit had a bed waiting for me. As I began my third hospital admission in two weeks, my ICU experience was better than what I’d survived on the general medicine floor. Still, two things struck me.

First, the ICU resident assured me “with 100% certainty” that my bleeding was not the result of varicies — stressed blood vessels subject to intermittent bursts that produced rapid blood loss. Top specialists would eventually prove him wrong. Beware of youthful certainty — or misplaced certainty at any age.

Second, the resident told me that he would talk to the GI people. He thought they would probably want me to have another colonoscopy.

You have got to be kidding.

Needless to say, the colonoscopy didn’t happen. Instead, an outstanding specialist performed a diagnostic test called an EUS the following day. More significantly, he took personal charge of my situation in a way that no prior physician had. At last, I had reached the promised land of America’s vaunted medical system.

Something else became clear to me. The goal of ICU doctors is to get a patient sufficiently stable to move him or her out of intensive care. That makes sense, but in my case, the specialist who had performed the EUS stressed to my family and me that the goal was to try to “catch” the internal bleed as it was happening. Only in the ICU could that degree of attention to a patient occur.

“Over the weekend, don’t let anyone move him out the ICU,” he said.

We fulfilled his directive, but it took a herculean effort fighting the ICU hospitalist team that wanted something much different. At one point, I asked the ICU attending physician to please call the EUS specialist directly. I think she did, because the attitude of the entire ICU team changed dramatically thereafter.

In discussing my eventual move from the ICU, the attending physician suggested that I go to a floor where a resident would be available to monitor me more closely.

“It’s a resident hospitalist floor,” she said. “That seems like the best place for you.”

It sounded good, until I got there and realized I was returning to the same floor that I’d occupied for my first two admissions. Greeting me was the third-year medical student who was becoming the Forrest Gump of my medical journey.

Several days later, the final biopsy results came back. It was a mixed bag. The good news: I had relatively uncommon neuroendocrine pancreatic cancer. It is slow-moving and not aggressive. Life expectancy for victims gets measured in years, rather than months. Treatment involves monthly injections, rather than debilitating chemotherapy. The bad news: The tumor had so intertwined itself into my major vascular systems that it was inoperable and probably the culprit responsible for my internal bleeding.

Perhaps the best news of all was that the diagnosis meant I would move to a designated cancer floor where the physicians making the rounds were oncology specialists. From then on, I would remain in the care of doctors who would look at me holistically — as a unitary cancer patient with complications. Maybe they were called hospitalists, too, but this would be a decidedly different experience from what had been happening to me on the general medicine floor. My new group spoke frequently with the specialists who were the reason I’d chosen the hospital in the first place. The specialists themselves made visits to my room.

I was finally in the presence of doctors who were accustomed to treating entire patients, rather than discrete conditions.

Filed under: American Medical System, Pancreatic Cancer, Pancreatic Cancer Story]]>http://thelawyerbubble.com/2015/03/13/a-brief-respite-and-a-new-medical-team/feed/4thebellyofthebeastWRAPPING UP THE SECOND HOSPITAL STAYhttp://thelawyerbubble.com/2015/03/12/wrapping-up-the-second-hospital-stay-2/
http://thelawyerbubble.com/2015/03/12/wrapping-up-the-second-hospital-stay-2/#commentsThu, 12 Mar 2015 13:46:10 +0000http://thelawyerbubble.com/?p=11847Continue reading →]]>My three-night say in the hospital — my second such admission in ten days — was coming to an end. During morning rounds, the hospitalist team pronounced me stable and said discharge would happen soon. Partially dressed and awaiting only the removal of my to intravenous needles, I eagerly awaited my departure.

Shortly before noon, the resident on the hospitalist team — the same person who had dismissed as a coincidence my precipitous hemoglobin drop (and blood loss) during the colonoscopy prep during my first stay — entered the room alone.

“We have the results of your CT scan from last night,” she began.

“Ok,” I said.

“You have a 7.6 cm by 5.6 cm mass at the head of your pancreas,” she continued. “The next step will be something called an EUS and biopsy to determine what diagnosis and treatment options.”

“Ok,” I replied. At that point, my son walked in with his lunch.

“Do you have any questions?” she concluded.

“I don’t think so,” I answered. “We’ll just take it one step at a time.”

“Have you eaten anything today?” she wondered. “I want to check with anesthesiology to see if they can do the EUS procedure later today. We’d like to have you stay in the hospital until you have it done.”

“What’s the point of staying here?” I asked. “Because of the mishandling of the camera endoscopy pack, we won’t have those results for another day, at least. There’s no way anyone will perform an endoscopy/biopsy today because I’ve eaten breakfast and started lunch. I’ll go home and come back tomorrow for the UES, if I have to. But nothing good is happening to me in this hospital right now.”

“I’ll check,” she responded.

A few minutes later, she came back to confirm what I suspected: I wouldn’t have an EUS until the following day, at the earliest. Later, she came back with discharge papers that scheduled it for a week later.

The delayed schedule was fine with me because I now wanted time to investigate and find the very best specialists to pursue the partial diagnosis (and whatever came next) that I had just received. I had numerous sources from which to develop that information and I used them all. I had one chance to get this right and I needed the best possible team — not just whoever happened to be the attending physician at the time set for an inpatient procedure.

“What’s up?” my son asked. I told him what I’d just learned and what would happen next.

“I have a 7.6 by 5.6 cm mass at the head of my pancreas,” I relayed back to him. “The next step is to do a deep endoscopy, called an EUS, to biopsy it. After I get those results, we take from there.”

“Well,” he said, “that’s about as completely as I could have said it. Would you like to talk to a social worker.”

“No,” I said with a laugh. “For starters, until we get more results, I don’t have any idea what I would talk to such a person about. How about this plan: you help whoever is working on the discharge papers to get me out of here?”

There’s no place like home. Unfortunately, I wouldn’t be there long.

Filed under: American Medical System, Pancreatic Cancer]]>http://thelawyerbubble.com/2015/03/12/wrapping-up-the-second-hospital-stay-2/feed/5thebellyofthebeastGOOD PEOPLE, GREAT TECHNOLOGY, DYSFUNCTIONAL SYSTEMhttp://thelawyerbubble.com/2015/03/06/good-people-great-technology-dysfunctional-system/
http://thelawyerbubble.com/2015/03/06/good-people-great-technology-dysfunctional-system/#commentsFri, 06 Mar 2015 20:07:18 +0000http://thelawyerbubble.com/?p=11787Continue reading →]]>In my last post, I described my battle against the hospitalist team and the GI Fellow who had decided early on and without hesitation that I needed another colonoscopy — my second one in a week. Once I found and presented the attending GI physician with sufficient evidence to demonstrate that my symptoms were more consistent with an upper GI bleed than a lower one, he responded quickly and unambiguously.

“This is your second hospital stay in a week,” he said. “We have to get this moving and get you out of here.” It was Sunday afternoon.

“I’m ordering another endoscopy, just to make sure the first one didn’t miss anything,” he continued. “We’ll also do a capsule endoscopy. They’ll insert a camera-pill at the same time we perform the endoscopy. I’ll schedule both procedures for early Monday morning and have them place the capsule so that at 5:30 pm someone can pick up the image pack. We should begin to get some results on Tuesday.”

“Will you be performing those procedures?” I asked hopefully.

“No,” he said. “Another attending is on call here after today.”

“So I lose you at…?” I asked.

“Midnight,” he said. “But I’ll still be in the hospital tomorrow. After all, I do have patients here to see.”

What was that supposed to mean? I assume he was referring to people whom he’d seen as outpatients and then admitted to the hospital for specific procedures. But wasn’t I his patient, too?

His remark suggested something about his personal investment — or lack thereof — in those who, at least in my case, enter the hospital by way of the emergency room. Never mind that most of us are in worse shape than those a physician may regard as his “real patients.”

“You’ll be in very capable hands,” he assured me. “You’ll have the doctor who trained me.”

That was good enough for me.

***

The second endoscopy would become the most important step in reaching a diagnosis. I’ll come back to that in my next post. But the story of what happened to the imaging pack for the related camera endoscopy is an example of how a physician’s directives can go unheeded by those whose only job should be to follow them.

As required, I wore the imaging pack for the entire day. At 6:00 pm, I rang for the nurse.

“Can I help you?” came the response over the speaker.

“Yes,” I said. “The attending GI wanted the pack for my capsule endoscopy picked up at 5:30 pm. Can you make sure it gets picked up before everyone in the GI lab goes home?”

At 7:00 pm, a hospital transport worker arrived to take me via gurney for a CT scan. The attending GI physician who’d performed my second endoscopy that morning had ordered it after seeing an anomaly. His willingness to entertain the possibility that my case was atypical saved my life.

As I lay on the transport gurney, I asked the nurse what was happening with the camera pack.

“I paged the resident, who said he’d paged the GI resident on call, who said it was no big deal. They would probably pick up the pack tomorrow,” she said.

I was furious.

“Well, despite the views of the various on-call hospitalist and GI residents, the attending GI who ordered the camera endoscopy thought it was a very big deal. Here’s what I want you to do while I’m gone for my CT. Call the attending GI physician who ordered a prompt retrieval of the camera pack so processing of the images could begin. Tell him the pack is still sitting on my shelf and ask him how we get it where it’s supposed to be. Because I’ll tell you where it’s not supposed to be: in my room.”

“I’m not allowed to do that,” the nurse responded. “I have to call the resident on call and then he has to call the GI resident on call.”

As my wife and I headed for my CT scan, I was fuming.

“The CT will be on the same floor as the GI lab,” I suggested. “Maybe we can find someone down there who will pick up the damn pack. I’ll take it to them myself on a gurney, if I have to.”

Once on the CT floor, my wife made a beeline for the GI lab.

“Follow her,” I told the transport guy pushing my gurney down the hall as fast as he could. This is what black humor feels like when you actually experience it, I thought.

We sped behind her as she entered the GI lab and searched for someone who could help.

As I rolled into the empty GI lab on my gurney, a short, stocky, middle-aged woman stood with a mop next to her steel cleaning bucket.

“She can run around here all she wants,” the woman said as she shook her head in disbelief while my wife raced through the entire GI lab. “But ain’t nobody here. They all gone home.”

Indeed, they had.

After the scan, I returned to my room where the dreaded camera pack remained on my shelf. Meanwhile, the nurse to whom I’d barked out orders relating to the problem had benefited from a shift change — she was gone and her replacement was clueless about just about everything, so I gave up for the evening.

***

When I awoke at 7:00 am Tuesday morning, the pack was still there. In walked the only person who had provided anything remotely resembling continuity of care during my first two admissions: a third-year medical student.

“How was your evening?” he smiled.

“You see that camera pack?” I answered coldly. “The attending GI who ordered the camera endoscopy wanted it picked up at 5:30 pm yesterday. Your job is to find out why it’s still there.”

An hour later, he came back. “It looks like you might be going home today,” he said happily.

I pointed to the pack on the shelf.

“I’m sure they’ll pick up the pack soon,” he said.

“What does ‘soon’ mean?” I was fed up.

“I don’t know,” he said meekly. “The GI lab is very busy.”

“And I’m very much bleeding,” I replied.

An hour after that, I wandered into the hall and found the medical student.

“What’s the story on the pack?” I asked.

“I’m waiting to hear back from the GI Fellow,” he said. At that point, the phone rang. “That’s her calling now.”

He was right. I heard only his end of the call, which went like this:

“I’m very sorry to bother you…I know you’re very busy…We have an imaging pack from a camera endoscopy that hasn’t been picked up…Oh, yes…Sorry…Yes…Sorry to bother you….Thanks.”

I was watching the impact of the medical pecking order in action: Attending physicians were at the top, then came their Fellows, followed by residents and finally, interns. Medical students occupied a status somewhere below nurses. He hung up the phone. It was 10:00 am.

“She said they’d pick it up as soon as they could,” he explained. “But they have to be the ones who pick it up. No one else can deliver it to them. And then they’ll send it to wherever it gets processed.”

I glared at him.

“You know, they do these imaging studies on an outpatient basis,” I said slowly and calmly. “So how about if I just have my wife take it down there and tell them that this pack is from an inpatient.”

He seemed puzzled: “I don’t think you can do that. When you’re inpatient, they have to pick it up.”

“Just to warn you,” I said sternly, “I’m going to come out here every 30 minutes and harass you until someone picks up that pack and takes it where it’s supposed to go. I have family members here who will deliver it personally, but you’re telling me that’s not an option. Whatever else is happening here, you and the GI lab have violated the the directive that the attending GI issued when he ordered the camera endoscopy on Sunday. We’ve already lost an entire night because of someone’s ineptitude and bureaucratic absurdity. So every 30 minutes you’ll hear from me — until it’s no longer in my room.”

At 10:30 am, someone from the imaging processing department — not the GI lab — walked into my room and picked up the pack.

“Where are you taking the pack for processing?” I wondered. “The GI Lab?”

“Oh, no,” he said. “We do the processing in a special department across the street.”

Perfect. The GI Lab that apparently insisted on being in the middle of a retrieval process — and messing it up — had nothing to do with processing the pack to get the results.

***

The 17 hours from 5:30 pm Monday night to 10:30 am Tuesday morning may not sound like a long time, but when you have uncontrolled internal bleeding from unknown origins, every minute of delay translates into something real, namely, blood leaving my body. I wonder how some of the players in this vignette would have felt and acted if it was leaving theirs.

In the end, it boils down to three simple issues. One is the set of bureaucratic obstacles that interfere with the effective delivery of health care. Someone — anyone — could have delivered my pack in a timely manner. But for no good reason relating to patient needs, the bureaucratic structure did not allow it.

Second, a patient benefits greatly when a conscientious health care worker is willing to challenge such bureaucratic obstacles. My nurse who went off duty at 7:00 pm on Monday wasn’t one of those people — and it’s not fair to expect any of them to play the role of aggressor-advocate on behalf of a patient. But I had other nurses throughout my subsequent stay who had no reservations about rocking the boat. They didn’t care whose ire they incurred and their efforts made a positive difference in my experience.

The third point may be most important. There should be sufficient continuity of care so that a single attending physician becomes vested in a patient and remains an active participant in the diagnostic and treatment process. In theory, hospitalists are supposed to perform the “PCP-in-the-hospital” function. In my case, the reality is that they failed miserably in my first two admissions.

The attending GI who ordered the camera endoscopy understood the gravity of my condition, as well as the need for speedy action to deal with it. But he went off duty at midnight and I never saw him again.

Filed under: American Medical System, Pancreatic Cancer, Pancreatic Cancer Story]]>http://thelawyerbubble.com/2015/03/06/good-people-great-technology-dysfunctional-system/feed/6thebellyofthebeastPENETRATING THE HOSPITALIST WALLhttp://thelawyerbubble.com/2015/03/03/penetrating-the-hospitalist-wall/
http://thelawyerbubble.com/2015/03/03/penetrating-the-hospitalist-wall/#commentsTue, 03 Mar 2015 17:31:46 +0000http://thelawyerbubble.com/?p=11775Continue reading →]]>Two days into my second hospital admission in a week, the GI doctors were still pointing me in the direction of a second colonoscopy. At least, that’s what the internal medicine team — hospitalists, they’re often called — was telling me.

“Let me talk to the GI attending,” I told the gang of six as they made their morning rounds. The group included an intern, a resident, a hospitalist Fellow, the attending hospitalist, and two medical students.

Penetrating the hospitalist wall to communicate directly with the specialists who are actually making the key diagnostic and treatment decisions would become a daunting challenge. This was especially true on the “general medicine” floor where I spent my first two hospital stays.

“We’ll try to reach him,” said the team resident. “But don’t worry. We’re in consultation with his Fellow regularly about what should happen.”

“That’s not particularly reassuring,” I said. “I don’t know what’s being lost in translation between you and the GI Fellow and her attending physician.”

In the ER, the GI Fellow’s tunnel vision caused her conclude without any corroborating evidence that my problems required another colonoscopy. I’d encountered such personalities before: she was accustomed success, but rarely faced the kind of tough questioning that I’d posed. (My 30 years as a Kirkland & Ellis litigator had made me a pretty effective interrogator.) In fact, when she couldn’t answer in a consistent way that made sense, she was threatened and became defensive. She wasn’t going to change course. Oh, for the comfortable — and sorely misplaced — certainty of youth.

At that point, I took a page from a former client’s playbook. He was the best negotiator I’d ever met. When he didn’t like the way things were going, he walked away from the table.

“I don’t like this plan,” I said. “The last time I had a colonoscopy here, the preparation process to clear me out caused my hemoglobin to crash and required a blood transfusion. I’m not going to do that again. I’ll sign whatever releases you want me to sign. But I’m not doing it.”

I showed the young resident a printout of my blood levels during my previous admission.

“That drop in hemoglobin was probably a coincidence,” she ventured.

Her reaction was a vivid example of confirmation bias. Facts didn’t matter to her conclusion. “Coincidence” explained away anything at odds with what she wanted to see.

“Are you kidding?” I was incredulous and becoming angry. “When you have to rely on the concept of coincidence to explain away correlations that seem pretty obvious to anyone else, you need rethink what you’re doing.”

I wasn’t finished.

“Let me put it to you this way,” I said pointedly as I framed my closing argument. “Are you willing to bet two units of your own blood that my crash during the last colonoscopy prep was a coincidence? Because I’m not.”

“So here’s what I want you to do,” I continued. “Take a look at the stool sample I left in the bathroom this morning. It’s called a melena — a classic symptom of what usually is an upper GI bleed, not a lower one that a colonoscopy will find. I understand how the hospitalist system is structured. You have your turf to protect. Like most doctors, you think in protocols based on typical cases. I need you to think outside the boxes you’ve created for yourselves. You need to talk to the attending GI — not his Fellow or whoever your contact person is for the GI team on this particular shift. Tell him that I want to talk to him personally so he can come up with a new plan because I’m not having another colonoscopy. We ran the preparation process experiment on me once. I’m not repeating it. Period. Not negotiable.”

A few hours later, I’d heard nothing in response to my demands. I ventured into the hall and, fortuitously, encountered the attending GI physician and his Fellow — the same one who had decided on another colonoscopy when she saw me in the ER.

“I assume you’re on the way to see me soon?” I asked the GI attending.

“No,” he seemed puzzled.

“No one has talked to you about my problems with the current colonoscopy plan?” I wondered.

“No,” he said. “Why?

“Can you walk with me for a minute? I want to show you something.”

We returned to my room where I showed him the stool sample.

“Melena,” he said.

“Right,” I said.

“So tell me how another colonoscopy will identify the source of that bleed?” I asked.

“I can’t,” he replied. “It’s an indicator of a probable upper GI bleed. It’s could also be the result of a lower GI bleed, but that’s less likely.”

I then showed him the time series printout of my blood draws — including the critical crash period during the colonoscopy prep that the hospitalist resident had dismissed as coincidence.

At that point, his Fellow walked in. I invited her to take a look at the stool sample I’d left in the bathroom. She refused. I invited her to look at the printout of blood results during my previous colonoscopy prep. She didn’t want to see that, either.

At last, I’d found a doctor willing to reconsider his own assumptions about what was happening to me. It took physical evidence — a bowel movement that I’d saved for hours and my printout of blood results associated with my prior admission — to persuade him. Without that hard evidence to show him, I think that my words would have continued to fall on deaf ears.

About 30 minutes later, the GI attending returned to my room — without his Fellow. He said that he’d canceled the colonoscopy, ordered another endoscopy because the first one might have missed something important (he said there were statistics on that), and wanted to see the results of a capsule endoscopy — a pill that transmitted images to a battery pack that I would wear for eight hours.

“We have to get this going,” he said. “I’ll schedule the endoscopy for the morning and have them place the capsule so that at 5:30 pm, someone can pick up the image pack. We should get those results by Tuesday.”

(Despite his desire for a prompt retrieval of the capsule endoscopy imaging pack, it didn’t get picked up as quickly as he wanted. We’ll come back to that not-so-funny comedy of errors in an upcoming post.)

“Thanks for being willing to reconsider your own conclusions,” I said. “Only a confident professional is willing to do that.”

“Not at all,” he said. “Not at all. It’s good that you acted as you did. And it’s good that you are so informed about your situation. It seems that you have become an expert in this area yourself.”

Whenever we get a new case, that’s what litigators do, I thought.

***

Hospitalists purport to function as a liaison between the patient and the specialists who are really calling the shots. In fact, if you ask the hospitalists whether some procedure will happen — in my case, a second colonoscopy — they’ll tell you that they defer to the specialists.

“Who, exactly, ordered another colonoscopy?” I asked.

“The GI team,” came the response.

“Give me a name,” I persisted.

“It’s a team that includes the GI Fellow who saw you in the ER,” the resident hospitalist replied. “The attending GI rotates. But they all have access to all of the notes that all of us leave in the computer.”

How reassuring — computer notes that someone may or may not read have become the primary conduits for continuity of care.

***

Years ago, primary care physicians (“PCPs”) actually visited patients in the hospital. It was part of the professional service that they rendered. Two doctors coined the term “hospitalist” in a 1996 issue of the New England Journal of Medicine. In some respects, it’s a good idea that, all too often, has gone terribly bad.

According to one of the co-authors of the 1996 article, the hospitalist movement grew from a desire to move away from a procedure-oriented billing and revenue system to one that emphasized coordination of patient care. He described the key challenge to expanding the hospitalist program: “We recognized from the start that hospital support payments were crucial, and would hinge on hospitals’ perception of a positive return-on-investment.”

Lost in the search for this positive investment return is continuity and advocacy that a PCP is uniquely suited to provide on behalf of his or her patient. By 1996, maybe the PCP had already become a marginal player, but once upon a time, having hospital privileges meant something to a patient and his primary doctor. Among other things, it meant that the patient could expect his PCP to quarterback hospital care.

Today, the hospitalist embodies ways in which the core mission of modern medicine has become muddled, if not lost. All too often, they are an obstacle to direct doctor-patient interaction that is essential to effective care. Experts should be basing their decisions on accurate information that they receive directly from the patient, rather than from the medical system’s version of the “telephone game” whereby a patent’s initial reports to a young medical student or intern eventually make their way to the real doctors who matter.

With his or her PCP absent from the hospital picture, the patient alone must do what is necessary to get direct access periodically to the specialists who are making the most important decisions about diagnosis and treatment. That means piercing the hospitalist wall.

I didn’t go into the hospital expecting to fight with doctors. The system left me with no other option.

Filed under: American Medical System, Pancreatic Cancer, Pancreatic Cancer Story]]>http://thelawyerbubble.com/2015/03/03/penetrating-the-hospitalist-wall/feed/8thebellyofthebeastTHE JOURNEY BEGINShttp://thelawyerbubble.com/2015/02/25/the-journey-begins/
http://thelawyerbubble.com/2015/02/25/the-journey-begins/#commentsWed, 25 Feb 2015 22:29:21 +0000http://thelawyerbubble.com/?p=11755Continue reading →]]>After grounding me, my primary care physician (“PCP”) explained that my next trip anywhere would be to a hospital emergency room. I called my wife, Kit, to let her know what was happening and that I would be waiting near our front door where she should pick me up and drive to the ER. As she arrived, I received another call from my PCP, telling me that the sugar level in my blood was highly elevated, but he wasn’t sure how that related to my likely internal bleeding.

My wife knew the answer to that one. “Pancreas,” she said when I relayed the information to her in the car. It would be another two weeks before any doctor made the connection.

As I relate my story, I won’t name any individuals involved in my care. That’s because every medical person whom I encountered has been caring and conscientious. They are truly trying to help patients.

But the constraints within which those individuals operate — and the manner in which those constraints inhibit the delivery of patient care — are not unique. Rather, they are pervasive throughout America’s medical system. I know this, in part, because I’ve been researching that system. In many of the same ways that an undue emphasis on short-term metrics has become a central contributor to the legal profession’s most unfortunate trends (as I describe at length in The Lawyer Bubble – A Profession in Crisis), similar short-termism infects the medical profession, too.

Stated simply, behavior follows incentive structures. If you sense problems with what happens as I make my way through the very top tier of our medical system at one of the finest facilities in the world, remember that those problems are endemic. That’s a good reason to consider them carefully.

My first hospital admission ever happened on January 28, 2015. Everyone assumed that I had a lower GI bleed. For that, you get a colonoscopy, locate the bleed, and cauterize it. In my case, they didn’t find any bleed. So they did an endoscopy, too. Again, no sign of a source of the bleeding.

All of that was okay. Often, tiny blood vessels in the bowel seal themselves. One other noteworthy item would become important later: during the preparation process for the colonoscopy — and there’s definitely no reason to go into details about that — my hemoglobin level (a proxy for the volume of blood in the body) dropped dramatically. I required an infusion of two units of blood.

Three nights after walking into the ER, I went home. Things returned to normal for a few days as I watched the Super Bowl in my living room. On the following Tuesday and Thursday, I taught my undergraduate course. But by the end of my Thursday class, I was noticeably fatigued, again.

By Saturday morning, I decided on another trip to the ER to check my blood levels. I contacted my PCP; he agreed. I also contacted the GI physician who had done my colonoscopy. His “Fellow” — a kind of junior specialist in her late 20s or early 30s — returned my call and said she’d meet me in the ER. Blood tests revealed that the GI bleed persisted.

Meanwhile, my PCP remained active in his efforts to monitor my situation. But the days of his involvement in my care were numbered. To be sure, specialists with expertise in diagnosing and treating problems like mine are vital. It’s appropriate for PCP’s to defer to them. But once you’re in the hospital, the PCP has little or no influence over what happens to you.

The resulting lack of continuity in medical care would become a central theme of my hospital experiences. Anyone who does not actively manage whatever doctors in a hospital want to do — and fails to make sure that the physicians at the top of the food chain are intimately involved in diagnostic and treatment decisions — risks poor outcomes.

The attending ER physician said my low blood levels required hospital admission. Later, the GI Fellow saw me in the ER. After asking questions about symptoms, she voiced her conclusion:

“We’ll give you another colonoscopy.”

Confirmation bias had clouded her judgment. She had locked into a particular version of what was happening to me. I watched her recharacterize my description of symptoms — which suggested an upper GI bleed — to fit her minds’s model of a lower GI bleed.

Aware that the colonoscopy preparation process had caused my blood levels to crash during my previous hospital stay, I was pretty sure that another such procedure would not solve my problems. But now was not the time or place to start that discussion. The GI Fellow would be unwilling to hear whatever I had to say on the subject anyway.

On a gurney, I returned to the same inpatient floor that I had left a week earlier. Except for a third-year medical student, there would be no continuity in my care there.

This post isn’t about law schools, big law firms, or even the legal profession. Rather, it begins a new series that will end — well, I’m not sure when it will end — but I have a pretty good idea how it will end. A few days ago, I received an unfortunate diagnosis: pancreatic cancer.

For my entire life, I’ve been a healthy person. Never overweight (5’6″, 140-145 lbs.); never smoked; one or two glasses of wine per week; annual physical exams; regular exercise regimen for the past 20 years. The diagnosis is the culmination of a startling turn of events that began shortly after my January 24 keynote address at the DuPage County Bar Association’s Annual Mega-Meeting. The following day, I was still tired. Ten minutes into my usual 30-minute workout on my elliptical trainer, I was totally out of gas. For the remainder of the day, I rested.

On Monday, I felt better as I prepared for my Tuesday morning undergraduate course – “American Lawyers – Demystifying the Profession” – at Northwestern University’s undergraduate campus in Evanston. The next day, I made it through the 90-minute session, but fatigue persisted.

By Wednesday morning, I felt bad enough to contact my doctor (“primary care physician” or “PCP”. We’ll be taking a deeper look into medical system as I proceed, so defined terms will become important). I told him that I had a major appearance scheduled for Friday in San Francisco. After describing my symptoms (including bowel movements that were, shall we say, indicative of a potential problem), he suggested blood tests.

I drove to downtown Chicago and began the half-mile walk from the Millennium Park garage to his office. One block into the trek, I knew I was in trouble — light-headed, weak, unsteady. (If I had disclosed my condition to my wife, she would have driven me. But I’m a do-it-yourself kind of guy.) I made it to the doctor’s waiting room, provided enough blood to perform complete tests, and then, after sitting for several minutes back in the lobby as I regained strength, walked back to my car.

Once home, I packed for San Francisco. My wife and I were looking forward to the brief trip involving my USF symposium appearance and a visit with our daughter living in the Bay Area.

At 4:30 pm on Wednesday, January 28, the phone rang. At the other end of the line was my doctor.

“You have to cancel your trip,” he said. “The only place you’re going is to the emergency room. I just received your blood tests.”

My life would never be the same.

Filed under: American Medical System, Pancreatic Cancer Story]]>http://thelawyerbubble.com/2015/02/20/we-interrupt-this-blog/feed/27thebellyofthebeastASIA: ONE FIRM GOES BIG WHILE ANOTHER GOES HOMEhttp://thelawyerbubble.com/2015/02/04/asia-one-firm-goes-big-while-another-goes-home/
http://thelawyerbubble.com/2015/02/04/asia-one-firm-goes-big-while-another-goes-home/#commentsWed, 04 Feb 2015 15:51:47 +0000http://thelawyerbubble.com/?p=11713Continue reading →]]>The contrasting headlines are striking. Two days after Fried Frank announced that it was pulling out of Asia, Dentons revealed that its partners had voted to jump in — big time. A week later, a ceremony that looked like a treaty-signing marked the combination of Dentons with Asia’s largest law firm, Dacheng Law Offices. The result is now a 6,600-lawyer behemoth.

A Big Bet

Dacheng and Dentons share some things in common. Both firms are themselves products of rapid inorganic growth. Dacheng was founded in 1992. Its website now boasts more than 4,000 lawyers worldwide.

Dentons resulted from transactions that combined four law firms — Sonnenschein, Nath & Rosenthal, Denton Wilde Sapte (UK), Salans (France), and Fraser Milner Casgrain (Canada) — into an organizational form known as a Swiss verein. Each firm maintains its own profit pool but shares strategy, branding, IT and other core functions. According to its website at the time of the Dacheng deal, 2,600 lawyers carried the “Dentons” brand.

But a brand is not a business, and any brand is only as good as its underlying product. Law firms have a single product to sell: the talent of their personnel. The most important challenge that comes with inorganic growth is maintaining consistent quality. In that regard and perhaps more than any other business, law firms have precious little margin for error.

In responding to anticipated questions on that subject, Dentons global CEO Elliott Portnoy framed the issue, but never really responded to it: “We know our competition will suggest that this dilutes profitability and will raise questions about quality control. But the simple truth is that we’re going to be able to generate more revenue, increase our profitability and position ourselves as a truly multicultural firm.”

The Big Question

Apart from failing to address the quality question, sound bites about multiculturalism don’t answer a central question: What will the culture of the combined organization become?

The practical differences between Dentons and Dacheng are enormous. According to The American Lawyer, average revenue per Dacheng lawyer is $78,000. In the October 2014 America Lawyer Global 100 listing, Dentons’ RPL was $505,000. Even with separate revenue and profits pools, integrating these two giants will still be something to behold.

“The combined firm will also have a Chinese chair, and none of the five vereins will have a majority of board seats. Any single verein can also block a policy it doesn’t agree with. In the combined firm, the global board will be increased from 15 to 19, with five seats for the Chinese verein and the same number for the U.S. verein. Andrew says the future number of Chinese seats will be adjusted according to the verein’s revenue growth. The chair of the global board, which includes all five vereins, will be Peng; Portnoy will remain the firm’s global CEO, and Andrew will continue to be the firm’s outward face as global chair of the combined firm.”

The Big Risk

The principal question that any leader embarking on a merger of equals should ask is: What happens if it fails? Among other things, leadership requires risk management. Anticipating worst-case scenarios might lead to decisions that outsiders view as too conservative. But the downside consequence of failing to consider those scenarios can be fatal. Just ask the former partners of Dewey & LeBoeuf.

In that respect, the nearly simultaneous decision of Fried Frank to exit Asia after a nearly decade-long effort to gain traction there is interesting. That firm’s China entry began in 2006 with lateral hires from Hong Kong. A year later, it opened an office in Shanghai. But it began deliberating the fate of its Asia presence in 2009 before reaching its recent decision to leave.

According to firm chairman David Greenwald “discipline and good business judgment” led the firm to close its China offices. He deserves credit for a tough decision and forceful action. Calling the time of death on any failed effort is never easy.

In commenting to the American Lawyer about Fried Frank’s departure, law firm consultant Peter Zeughauser said, ““Nobody wants to admit defeat, but Fried Frank might be the canary in the mineshaft. China has always been a hard market, and with the local firms getting much stronger and starting to capture the lion’s share, it’s not getting any easier. Some firms will view it as a necessary investment for the future, but for others, it’s just not worth it.”

Different Approaches; Different Outcomes?

Published reports suggest that Fried Frank initially went into China hoping to capitalize on its existing relationships with U.S. clients — including Goldman Sachs and Merrill Lynch. Dentons appears to have a dramatically different strategy: joining forces with the largest of the China-based firms that Zeughauser identified as getting stronger.

Whatever else happens, the leaders of Dacheng-Dentons can say that they once presided over the largest ever lawyer branding experiment. Especially for Dentons, it involves a big bet. For the sake of everyone involved, let’s hope it’s on the right horse.